Endgame Nearing an End:

The Production of Bare Life under the U.S. Deportation Regime

by Konrad Aderer

Professor Robert Smith

Sociology of Immigration and Citizenship, CUNY Graduate Center

Spring 2011

ABSTRACT

The vast expansion of immigration enforcement in Western states in recent decades has

been called “the deportation regime,” or the “Homeland Security State” (De Genova 2007).

Social theorists have applied Giorgio Agamben’s concept of “bare life” to immigrant detention.

This article begins a framework for empirically grounding Agamben’s concept of “bare life” as

realized in the deportation regime of the United States over the years following September 11,

2001, a period in which deportations of “illegal aliens” in the United States rose from 165,168 in

2002 to 387,242 in 2010 (CRS Sept 2011). Policy analysis will focus on the ten-year Homeland

Security plan known as ENDGAME, set to conclude in 2012.

INTRODUCTION

The deportation of migrants has been practiced in Western democracies since at least the

mid-18th century, but the immigration enforcement regime created by the United States in the last

ten years is unprecedented in scale. In the largest U.S. governmental reorganization since World

War 2, the Department of Homeland Security swallowed 22 agencies upon its creation in 2002,

including all those responsible for immigration and border control. From FY2002-2010 the

budget of the DHS rose 19.5BN-55.3BN, an 184% increase. The civilian workforce of the DHS

increased from 182K in 2004 to 230K in 2010, plus 200K estimated contractors (MPI 2011).

Immigration and Customs Enforcement (ICE), the DHS agency tasked with immigration

enforcement in the interior of the United States, has become the second largest investigative

agency in the federal government.

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Though the massive increase in the detention of undocumented migrants in the United

States began at least five years before the events of September 11, 2001, the ten-year operational

plan for detention and removal operations called ENDGAME, announced by the Department of

Homeland Security as it began operations in 2003, signaled a bold institutional self-awareness

and purposiveness. The 49-page plan, which specifically concerns a sub-agency of ICE,

Deportation and Removal Operations (DRO), is notable for its declared goal of “removing all

deportable aliens.”

In the same time frame covered by ENDGAME, Italian philosopher Giorgio Agamben’s

concept of bare life, set forth in his 1998 book Homo Sacer: Sovereign Power and Bare Life, has

emerged as a central theory in scholarship on deportation and detention. The book ties together

theories of sovereignty and biopower in homo sacer, an archaic Roman figure of law who is

excluded from human life to live a bare life of mere existence.

Using the ENDGAME plan as a discursive frame of reference, this paper analyzes the

sociopolitical and sociospatial characteristics of the “bare life” of immigration detention under

the Homeland Security state. Focusing on the policies and practices of immigration enforcement

that have unfolded under the ten-year ENDGAME plan, this work posits that the bare life

produced in the undocumented migrant is not a static condition but a sociospatial continuum.

Immigration detention is where the face-value logic of all discourse and terminology about

human rights and national security policies is inverted. At the institutional level it is an

improvised, draconian welfare space of indefinite incarceration removed not only spatially from

body politic but separated in sociopolitical space under the specific conditions which

differentiate immigration detention from criminal imprisonment.

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A pivotal sociospatial aspect of immigration detention is that the detainees occupy the

same facility but a different social space as criminals. More than half of immigrant detainees are

housed in state and local jails contracting their space to ICE through inter-governmental service

agreements (IGSAs) (Summerill 2007). Unlike criminal incarceration, immigration detention has

no sentence, and no guaranteed right to an attorney. The migrant detainee is often literally

unlocatable to family and legal counsel. Her advocates on the outside must contend with the

opaque bureaucracy of DHS, fractured sovereignties of state governments and private prison

operators.

PURPOSE OF INQUIRY

Claudio Minca asserts that “writing on spaces of exception means inevitably engaging

with Agamben” (2005). In the post-9/11 context, the bare life of the homo sacer has also been

linked with forms of “exceptional” detention such as the Guantanamo detainee and the enemy

combatant. But immigration detention deserves special attention because, I will argue, no form

of social exclusion is as embedded in the contemporary state. Unlike other “spaces of

indistinction,” it explicitly addresses the state’s territoriality, which has become the effective

basis of human rights. In previous research there has been a lack of specificity in interrogating

how state institutional practices create different contemporary manifestations of bare life,

resulting in a gap between the theory and ethnographic studies of immigration detention.

Nicholas De Genova problematized the concepts embedded in the practice of deportation

at length in his 2002 article, “Migrant ‘Illegality’ and Deportability in Everyday Life.” In 2010,

with Nathalie Peutz, he co-edited The Deportation Regime, which deportation as a method of

state control through a collection of case studies encompassing historical, theoretical and

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ethnographic approaches. In that volume Sarah S. Willen cautions against “the freewheeling

application of Agamben’s concept of homo sacer to an increasingly long list of groups” (Willen

2010: 266).

But rigorous analysis of deportation and detention as institutional practice is equally

important, to guard against the teleologies and ascribed motives that can afflict critical discourse.

And as De Genova once pointed out, the ethnographic study of undocumented migrants as an

empirically delimited group can unwittingly reify governmental logic. To analyze the practice of

immigration detention clearly without assigning motives requires earnestly and sometimes

guilelessly engaging with the state point of view. William Walters has examined deportation in

light of Foucault’s concept of governmentality, the active role the state takes in the management

of its population, which has come to include the state’s own mechanisms and metrics of self-

evaluation. Tracing the governmentalization of deportation since the 19th century, Walters notes a

shift of rationales from the expulsion of enemies of the state to a set of socialized responsibilities

that evolved in tandem with welfarist programs (Walters.

Much of the discourse appropriating Foucauldian theory on state power has turned certain

moments of his restless examinations of power into truisms. The application of Agamben’s bare

life scheme to immigration detention gives an opportunity, by extension, to test and elucidate

Foucault’s theories of biopower at the policy level. Stephen J. Collier has suggested that by

treating biopower as an “improvised problem space” of governmentality we can begin to correct

the persistent fixation in left discourse and critical theory towards centralized, top-down models

of power.

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To progress from the general idea of a person deprived of rights, reduced to bare life and

excluded from political life, to a theoretical scheme with specificity and explanatory power,

requires a way of addressing spatial concepts that can critique the territorial thinking of the

modern state rather than simply reproducing it. Appropriately several theorists working in the

context of sovereignty have suggested a topological approach to state power. Topology is a

branch of mathematics that has been analogously incorporated into the social sciences, for

studying how elements are organized and connected in spaces. Rather than geometrical

properties, topology is focused on the configurational principles of elements in space and the

transformations they undergo (Collier 2009, Tellman and Opitz 2009).

The most familiar way of looking at national space is as a topography, a political map of

different colored legal territories. The corresponding topographical understanding of law and

political territory established by the Westphalian Order of States has deservedly come under

increasing critical scrutiny. Understanding exceptional zones requires an approach that can

apprehend territorial spaces that are neither inside nor outside (Tellman and Opitz 2009).

A topological approach that engages the governmentality of ICE also allows us to

critically unpack the idea that detention and deportation are rational practices whose primary

goals are the physical removal of people within a border to a place outside it. Detention is a

welfare space within the territorial U.S. that is managed by an institution simultaneously locked

in an unending struggle to produce evidence of success. The sphere of discourse is where

illegality and the space of detained migrants outside of the political order are legitimized. For

ICE is a voluminous producer of discourse, in the form of proposals prioritizing the detention of

“criminal aliens” in the ENDGAME document, relentless dissemination of press releases on the

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capture of noncitizen drug dealers, sex offenders and gang members. In the age of ENDGAME,

the spectacle of noncitizen criminality has served as a biopolitical discursive technique, aided by

the production of “criminal aliens” under laws designating certain immigration violations as

crimes.

BARE LIFE

“In Western politics, bare life has the peculiar privilege of being that whose exclusion founds the city of men. The fundamental categorial pair of Western politics is not that of friend/enemy but that of bare life/political existence, zoē/bios, exclusion/inclusion.”

-- Agamben (12)

In his 1998 book Homo Sacer: Sovereign Power and Bare Life, Giorgio Agamben mines

the equivalencies and gaps in the concept of sovereignty that originated in classical Roman and

Greek philosophers and was expanded in the context of the modern democratic state by social

theorists, principally Carl Schmitt, Michel Foucault, and Hannah Arendt. Agamben contemplates

homo sacer, a figure of ancient Roman law, as the fundamental anchor of sovereign power and

biopolitics. Homo sacer is enigmatically defined as a person, sacred yet accursed, who can be

“killed but not sacrificed.”

The ancient Greeks did not have a single word for what we understand as “life,” but

rather two opposed concepts, zoé and bios. The original political order, the polis or city-state,

was founded on the exclusion of zoé, “bare life,” as distinct from bios, political life. This “bare

life” is none other than the life of the sacred and accursed homo sacer, who occupies a zone of

indistinction between these and other pairs of polarized concepts.

The exclusion of bare life from the political order establishes the sovereign, whose power

consists in the creation of law while standing outside of it. Homo sacer, the opposite and double

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of the sovereign, is a being in whom all figures of exclusion unite. Though the concept of the

“sovereign” calls to mind a monarch, Agamben’s scheme emphatically implicates the

sovereignty of the modern democratic state.

The social space of bare life is not an indeterminate void; it is a zone of indistinction

between opposites: sovereign/homo sacer, sacred/accursed, political life/bare life,

inclusion/exclusion, rule/exception, violence and justice. Viewed topologically In the context of

the modern state, bare life can be viewed as a social, legal and political space which refers to

territoriality but transcends it. Since “the rule lives off the exception alone,” for law to have

meaning the sovereign decision, or exception, must determine what is inside the juridical order

and what is outside. This sovereign exception is thus the means by which law can include life:

law suspends itself through the abandonment of life.

This abandonment, embedded in the sovereign power over life and death, is identical

with the pre-modern Germanic concept of the ban. To ban someone is to say that anyone may

harm him, a permission echoing homo sacer’s ability to be killed but not sacrificed. The ancient

Germanic and Scandinavian brothers of homo sacer were respectively the bandit, a “hybrid of

human and animal,” and the wargus, the wolf-man or outlaw. The bandit is more precisely “a

passage between animal and man” (Agamben 1998: 63).

BIOPOLITICS

Agamben and other theorists have noted the incompleteness and unannounced shifts in

Foucault’s own understanding of biopolitics. The stated purpose of the book Homo Sacer is to

bridge two models of power Foucault formulated but never linked: the juridico-institutional and

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the biopolitical. Juridico-institutional power denotes the political and legal realms, while

biopolitics encompasses technologies of the self, or the ways bare life is bound to external forms

of power.

To address the distinction between zoe, bare life, and bios, political life, Willem Schinkel

suggests that biopolitics be understood in two dimensions: the zoepolitical and the biopolitical.

Zoepolitics, externally directed, focuses on the bare life of people outside the state, including

Guantanamo detainees and immigration detainees. Biopolitics, directed internally towards people

within state’s territory but outside of “society,” focuses on the boundaries of the social body.

Citizenship thus functions as a mechanism of population control that enables the exercise of

biopower on both dimensions (Schinkel 2010: 19).

Space, both social and physical, is the linchpin of illegality and immigration detention,

and we can see that bare life inhabits a social space structured on a polarity of oppositions in the

zone of indistinction. Next we will examine how spatial ideas proceed from the figure at the

opposite pole from the homo sacer, the sovereign.

NOMOS, SPACE AND STATE VIOLENCE

Agamben writes that the sovereign nomos is the principle that joins law and violence to

establish the territorial order. The sovereign occupies the point of indistinction between violence

and law. In The Production of Space, Henri Lefebvre wrote that sovereignty demarcates a space

established and constituted by violence. This violence cannot be separated from a principle of

unification that subordinates all social practices. Through its monopolization of violence the state

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claims to create a space where society is perfected for all, though in fact it is the interests of a

minority class that are enforced.

The Westphalian state system, held as a defining element of modernity, established the

principle of territorial sovereignty in international law. Galina Cornelisse defines the concept of

“territoriality” as the founding of political authority on demarcated territory (Cornelisse 2010).

Though the idea of universal human rights emerged after 1945, these rights became inextricably

tied to national citizenship and hence state sovereignty. It is this sovereignty that finds itself

under attack by globalization, the free movement of labor across borders. Under globalization,

the State must fight irrelevancy by reconstituting itself through the production of bare life. This

is why, according to Schinkel, deportation and detention are not shortcomings of the state under

globalization but its fulfillment (Schinkel 2009).

According to Foucault, another decisive event of modernity was the inclusion of bare life

in the political realm as a subject. The focus on this bare life as an object of the calculations of

state power is the practice known as biopolitics, which finds its ultimate expression in the

“camp.” Agamben understands this causal chain as crucial to addressing modern democratic

state’s contradictions. The most horrific events of the 20th century, especially Nazism and the

death camps, can be traced to this stumbling block of Western democracy: that it seeks to bring

about people’s happiness in the realm of bare life, which tragically brings democracy into

collusion with totalitarianism. The camp is thus the “nomos of the political space in which we

live,” leading Agamben to the disturbing conclusion that the state of exception has become the

rule, and in truth we are all homo sacer.

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The absolute biopolitical space of the “camp”, which establishes the “political space” of

modernity (Schinkel 2010: 8), is topologically different from the prison because the prison is

securely embedded in the juridical realm, while the camp is the space of the exception which

makes the juridical realm possible. As the localization of the state of exception where sovereign

power confronts bios, bare life, without mediation, the camp is a “realm of experimentation,

exercise and symbolic reproduction of the violence of sovereign power” that also sends an

ambiguous, threatening message to the outside world (Minca 2005). We shall see below how

these concepts are tangibly realized in the deportation regime of the United States.

DETENTION AS SOVEREIGN ZONE OF INDISTINCTION

The history shows that the authority to admit, expel, and exclude foreigners is a political matter that is solely subject to the determination of the political branches as a means of self-preservation—an interpretation of the Constitution that the Supreme Court has always understood (Charles 2010).

The history of immigration law in the United States is driven by shifting rationales for

alienage: The “1996 laws,” which have greatly expanded “illegality” and local enforcement of

immigration law, were passed in the immediate wake of the Oklahoma City bombing prior to the

arrest of Timothy McVeigh. That the fourfold expansion of deportation was set in motion by a

Congress seized by the false assumption that Arab nationals had committed the then-largest

terrorist act on U.S. soil is a testament to the historical arbitrariness of the legislative production

of illegality.

This sovereign power over the noncitizen is enshrined in the Plenary Power doctrine.

First invoked in 1882 to secure the passage of the Chinese Exclusion Act from racial violence

into law, places Congress as sovereign over the alien homo sacer. Following 9/11, this power

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abrogated the right to equal protection by assuring that nationals from predominantly Muslim

countries could be targeted by Special Registration and the Absconder Apprehension Initiative.

Such policies will likely remain impervious to legal challenge until and unless the Plenary Power

Doctrine is revised (Mehta 2003). So long as violations of immigration law are eventually found,

non-citizens can be essentially detained at will.

In the first two years after the attacks of 9/11, as thousands of noncitizens “linked to

terrorism” were detained under Attorney General John Ashcroft, the imperative of “counter-

terrorism” was used with naked opportunism as a means to legitimize secrecy and opacity to

democratic scrutiny. But the logic of exception was soon to be made permanent.

THE ENDGAME FRAMEWORK

“As the title implies, DRO provides the endgame to immigration enforcement and that is the removal of all removable aliens.” – ICE memo from DRO director Anthony Tangeman to field operations division (DHS 2003)

In 2003, the newly operational Department of Homeland Security set forth its bold 10-

year strategic plan, ENDGAME. The Director of the Office of Detention and Removal (DRO)

prefaced this plan with a memorandum to the DRO field offices identifying ENDGAME as the

operational and budgetary plan for achieving a “100% removal rate” while meeting the new

rating metrics of Congress’ Office of Management and Budget.

By articulating this simple imperative, at once draconian, Sysyphian and quixotic,

ENDGAME signaled an emanation of will that seems to have truly ended the government’s

tolerance of the unauthorized migrant’s presence. Communities affected by illegality could still

live day to day in freedom. But more than ever before, chance and circumstance could deliver

any of them into the hands of ICE. 12

The stupefying unattainability of ENDGAME’s institutional goal was a brilliant stroke of

rhetoric that assured the new agency’s explosive governmental valorization. Like the rules of

physics near a singularity, juridical categories began to break down as polity, federal and state

governments, and enforcement agencies aligned themselves around the ENDGAME imperative.

The hidden matrix of bare life and state violence posited by Agamben began to be increasingly

visible and palpable.

The camp of the United States deportation regime is a patchwork of detention “bed

space” at federal, state and county facilities, which in the ENDGAME era has housed more than

39,000 people at any given moment. Yet the monstrous expansion of enforcement ushered in

under ENDGAME is ludicrously outmatched by the population of an estimated 10 million

undocumented migrants, thus becoming not a practical solution “illegal” migration but an ever-

unresolved political and administrative problem and a welfare space constantly slipping out of

institutional grasp.

The more spectacularly ICE has failed at its stated goals and political mandates each

year, the more the political economy of rapacious ICE budget appropriations has ballooned. In a

rational scheme of governmentality, the calculus of spending $162/day to house a noncitizen in

order to prevent her consuming public services, and then removing her at no small cost, can best

be evaluated as a federal jobs program.

Historically, the Department of Justice Office of Legal Counsel twice ruled that local law

enforcement could not make arrests solely on basis of immigration law, but in 2002 reversed

itself. The majority of immigration arrests now take place under 287(g) agreements, which were

created as an amendment to the Immigration and Nationality Act under IIRA. Along with the

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Secure Communities program, 287(g) is one of the decisive localized channels of sovereignty

have been enhanced according to the ENDGAME template.

The Secure Communities program could not be more Foucauldian. Using biometric

technology to identify unauthorized aliens who are serving criminal sentences, Secure

communities is a localized program targeting criminal aliens, for which no local public mandate

is required. As of May 2012, 1,508 counties in 44 states were enrolled (Deportation Nation

2010). This is another instance of exclusion through asymmetrical inclusion or biopolitical

incorporation. ICE cannot detain someone serving a criminal sentence. The practice consists of

waiting for the alien to serve her sentence, then detain her for administrative and physical

removal from body politic.

THE UNDOCUMENTED MIGRANT AS HOMO SACER

The archaic-sounding formulation that the homo sacer can be killed but not sacrificed has

been realized in the bare life of the immigration detainee. One hundred and seven migrants died

in ICE custody from 2003 to 2010, many under circumstances only revealed to the public years

after the fact, through investigations by the New York Times and National Public Radio

(Bernstein 2010). Unlike criminals who must be executed through a formal juridical process, the

immigration detainee can die invisibly under the localized sovereignties of ICE officers and

prison guards, with no one held accountable. While a sacrifice would be an execution, an

inclusion as a citizen, the migrant homo sacer is killed through his exclusion from state-granted

rights.

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Attorneys and advocates attempting to secure medical treatment for detainees have often

found that while a clear chain of institutional accountability is in place for those incarcerated

under criminal statutes, when immigration detainees suffer abuse or neglect no formal structure

exists (Macri 2004). The immigration detainee inhabits a zone of indistinction that is not just

theoretical or rhetorical. Furthermore, this zone is not a static place but a passage or process

through a zone of indistinction that we will later look at more closely as a topology. The bare life

of the immigration detainee can be conceptualized in four stages:

“Illegality”: a migrant subject’s experience of living in a state of “illegality” or potential

“illegality,” in the territorial U.S.;

Arrest (“apprehension”): an encounter between a noncitizen and an enforcement agent

that results in deportation or an attempt at prosecution under immigration law;

Detention: incarceration or bodily immobilization of a subject on the basis or pretext of

immigration enforcement;

Deportation (“removal”): coercive transportation outside the physical territory of the

United States.

Though these stages seem to follow a logical, causal-temporal progression, some of the

most striking contradictions of the deportation regime emerge when this sequence is disrupted.

What became more apparent than ever before in the immediate aftermath of 9/11 was that

“illegality” need not exist prior to the noncitizen’s arrest. “IIlegality” is frequently created after

the person’s arrest in order to legitimize it.

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Once the overriding institutional imperative is created to produce deportable bodies,

detention can and does take place even in the absence of illegality. This has been shown recently

in the detention and even deportation of people who are citizens or permanent residents, often on

racialized grounds (Waslin 2010: 104). Further explication of these stages shows how the

potential for Illegality, deportability and detainability shape experience and events at least as

much as their actuality.

Living under “Illegality”

The undocumented migrant in the territorial U.S. at all times lives in the shadow of her

detainability and deportability, though great variation can exist in her personal awareness of the

potential for deportation. Outside the camp she still possesses a measure of bios, political

existence, though in configurations which vary from state to state.

The involvement of local and state sovereignty in immigration enforcement has expanded

the border to extend to the interior or the territorial U.S., opening a zone of indistinction between

civil and criminal law, implicating citizen and noncitizen alike in the domain of immigration

enforcement. Localized configurations of deportability and detainability are shaped by and the

characteristics of ICE and U.S. Border Patrol field offices, and the differences in the enforcement

practices of municipalities in, for example, Arizona and New York, where large variations in

numbers of deportation proceedings appear for Mexican and Chinese nationalities.

Arrest

Arrest, or “apprehension,” is the pivotal stage that activates the migrant’s illegality,

detainability and deportability, or necessitates their production after the fact. The arrest may be a

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sudden, sometimes completely unexpected event for the noncitizen. From the standpoint of DHS,

the arrest can either be the spontaneous act of an enforcement officer or the result of a long chain

of institutional action.

The ENDGAME plan defines DRO’s massive purview into two “business functions:”

Removal, and Custody Management (detention). The budget for detention (Figure 1) has

dwarfed all the other major budget categories each fiscal year, while “Alternatives to Detention”

has remained by far the smallest.

ENDGAME divides

Removal into five key processes

into which the ICE “workload”

can be categorized: Identify,

Locate, Apprehend, Process and

Remove (ILAPR). These stages

happen to intersect and coincide

with logical stages in the bare

life of the deportable migrant at

the point of arrest/apprehension.

Two key processes precede the arrest: Identify and Locate. These are not consistently

meaningful since in many enforcement actions, e.g., a mass workplace raid, deportable migrants

are located en masse and often arrested before they are identified. A person stopped for a faulty

tail light may be asked for his immigration status and then arrested for not having proof of

residence. Which occurred first, identification or location?

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Figure 1. Detention and Removal Operations enacted budget, FY 2010.

Custody Operations (detention) $ 1.77 billion

Fugitive Operations $ 229.7 million

Criminal Alien Program $ 192.5 million

Alternatives to Detention $ 69.9 million

Transportation and Removal Program $ 281.9 million

Total $ 2.55 billion

Source: DHS.

Detention

The conceptual splitting off of the function of “Custody Management” (detention) from

Removal (the express and only legitimate legal purpose of detention) is telling in light of the

“bare life” formulation. From the institutional standpoint, the migrant is split into two beings

controlled under zoepolitical and biopolitical processes. Correlating the stages of the bare life of

the undocumented migrant to ILAPR and Custody Management highlight the bio/zoepolitical

aspects of arrest, detention and deportation.

From the migrant’s standpoint, she is arrested and detained, profoundly violent bodily

experiences that are a passage to physical and psychic dislocation. It is hard to conceive of life

more bare than that of the migrant detainee. This is the bodily experience of zoe split off from

bios, in the care of the detention welfare system. Civil liberties organizations and NGOs are put

in the defensive position of asking that deportation be conducted as humanely as possible. But

even maintaining the institutional standards of bare life from the standpoint of detainee medical

care has chronically proven impossible.

Deportation

In the biopolitical/zoepolitical scheme, the detainee’s bios can be seen as the aspect of

life that undergoes the inherently political process of deportation. To remove the “alien,” ICE

must present the detainee as a case file suitable for securing a “travel document” through

diplomatic agreement of the foreign state to which the detainee is being deported. Internally, the

migrant is biopolitically produced by ICE as a case around which knowledge is instrumentalized

to the extent possible to define him to Congress and the American public as a dangerous

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“criminal alien.” ICE also often invokes the specter of terrorism in detainee case files, dutifully

reporting even the wildest unsubstantiated allegations by detainee informants. There is a

discursive agility in the furtive references to these fears, since often neither claim survives legal

or rational scrutiny.

The ICE legal and public relations discourse is chiefly produced to show reponsiveness to

the mandate of Congress and the American people. ICE portrays itself as the loyal, overworked

servant of Congress; when confronted regarding abusive practices such as the denial of medical

care to detainees, ICE responses lapse into passive-aggressive whining about “unfunded

mandates” the agency is being called on to fulfill.

THE ENDGAME ZONE OF INDISTINCTION: BIOPOLITICAL AND ZOEPOLITICAL

TECHNIQUES

To recapitulate, bios denotes political life, and in the scheme we have taken up from

Schinkel, biopolitical techniques act on the object as a political being inside the state’s territory,

yet outside a sphere of inclusion within society. Zoepolitics focuses on zoe, the bare life of

people outside the state. As with all the topological elements of zones of indistinction, these two

modes blend and support each other, just as the “inside” and “outside” on which they are

predicated.

As stated earlier, bare life is not a uniform, blanket condition placed on the

undocumented migrant detainee. Overlapping spheres of legal and de facto inclusion bestow

virtually all migrants in the United States with some measure of a highly determined and

contested bios, at least in potential. But through the biopolitics of federal and local legislation

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and enforcement, undocumented migrants are pushed into a zone of indistinction between

criminal law and civil law. The criminalizing and racializing discourse produced by ICE for the

benefit of the American public and Congress, reduces migrants individually and collectively to

bare life which can then immobilized in the camp of detention.

The Biopolitical Production of “Criminal Aliens”

An early enhancement of the juridical force of the “criminal alien” construction took

place with the 1917 Immigration Act, but the annual number of detentions fluctuated in the low

ten thousands until the 1990s. The “1996 laws” heralded the first truly dramatic increase in

deportations in the United States. Under Anti-terrorism and Effective Death Penalty Act

(AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA),

criminal aliens came to include both legal and illegal immigrants who falsify documents, or who

have been convicted of any misdemeanor or crime including shoplifting (DWN 2008).

The 1996 laws opened up new zones of indistinction between criminal and civil law by

criminalizing certain violations of immigration law and authorizing greater involvement of local

police in immigration enforcement. That year saw a 64% increase in funding for Detention and

Removal Operations (DRO). In that interval the annual number of detentions rose from 69,680 to

114,432. Under ENDGAME the all-consuming focus of ICE discourse on the “criminal alien”

has solicited an upward spiral of budget appropriations.

Even though statistically migrants commit less crimes than citizens, the 1996 laws helped

produce millions of “criminal aliens” by creating new crimes out of civil immigration violations.

Of the criminal statutes used in DHS immigration prosecutions in FY 2004, over 80% consisted

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of one of two of these crimes: “entry of alien at improper time or place,” (47%) “Reentry of

deported alien” (34%) (TRAC 2005).

In the years after 9/11, the imperative of finding and arresting criminal aliens was the

principal governmental priority that propelled the 64% rise in detentions between FY 2005 and

FY 2009. Budget appropriation bills stipulated that the Department of Homeland Security “shall

prioritize the identification and removal of aliens convicted of a crime by the severity of that

crime” (U.S. Congress 2009). In ICE’s yearly budget request, the Secretary would start his or her

speech thanking the members of Congress and in the next paragraph invoke the need to protect

the American people from criminal aliens.

Unfortunately for ICE’s stated mission, the 200% rise in funding in FY 2005–FY 2009

did not lead to a commensurate increase in the detention of criminal aliens. There was only a

12% rise in criminal aliens in that period, but the number of detainees who have never been

convicted of a crime increased 99%, from 139,583 to 273,408. Even more troubling, in FY 2009,

76% of non-criminal arrests were made by the programs whose primary purpose was to target

criminal aliens (TRAC 2010).

But these facts would be met with incredulity by avid consumers of ICE press releases,

which trumpet headlines like “West Texas man sentenced to more than 7 years in federal prison

for transporting child pornography,” and “Mexican man sentenced to 20 years for cocaine

trafficking.” The ICE newsfeed yields stories of the capture of child pornographers nearly every

week. This is a particularly creative way to leverage revulsion for most despised class of criminal

onto the noncitizen, since Operation Predator, the Homeland Security arm that investigates child

pornography, does not discriminate with regards to immigration status. Thus these headlines

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often refer to U.S. citizen pornographers, but this fact not made explicit even in the full press

release.

Such techniques show how the category of “criminal alien” enacts a “ban” ascribing the

discursive moral repugnance of a criminal for whom incarceration is acceptable. Under the

modern democratic welfare state he is a bandit in the common-sense understanding of public

discourse as well, as a parasitical thief of benefits. The way crimes and misdeeds of noncitizens

come to be perceived as more reprehensible than those committed by citizens is deserving of

further study.

The designation of “criminal alien” also changes criminality from an act to a state of

being, fusing it with the ascriptive juridical category of illegality to fashion a permanent

exclusion from the sphere of constitutional protection via the statute of limitations. An alien who

commits a crime is always a criminal alien, subject to an indefinite sentence of detention, then

deportation, even decades after the crime and sentence are concluded. And these outcomes are

faced in the setting of immigration court, with lesser protection regarding rules of evidence than

criminal prosecutions.

Criminality and Ethnicity

De Genova and others have pointed out how the category of “illegal immigrant” in the

20th Century has been predominantly applied to Latinos, and particularly Mexicans. The

criminalization of illegality has always constellated around racist tropes, but the use of

nationality as a biopolitical category complicates the issue of racism with a geopolitical aspect.

The criminal alien designation has in recent years been grafted onto the discursive racial

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construction of Mexicans and other Latinos. The stories of violence south of the border become

further justification for this construction, which resonates through budget appropriations for

“cross-border” operations and anti-gang enforcement press releases.[ICE newsletter] While no

true rupture of meaning can be found between today’s deportation regime and the overt racism of

“Operation Wetback” in 1954, today ICE has reinterpreted the threat in more spatialized and

geopolitical terminology which ICE itself has supplemented with helpful topographical

visualizations (Figure 2). To its intended audience make a compelling case for militarization of

the Southwestern border. To those of us contemplating bare life, they serve as a compelling

topographical illustration of the spatial configuration of the state of exception in the U.S.

interior.

In fact the crime

rate in the U.S. is lower

among non-citizen young

men, especially Mexicans

and other Latin American

nationalities. And despite

the declining proportion

of criminal aliens to non-

criminal aliens, and the

statistical insignificance of accused terrorists among ICE’s detainees, the agency doubles down

on embedding racialized logic in its anti-terrorism mandate by publishing annual tables of

released SIC (Special Interest Countries) and SST (State-Sponsored Terrorism) immigrants. This

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Figure 2. DHS Map of “Detention Demand.”

Source: DHS.

raises the specter of thousands of “dangerous” aliens set free by the “virtual amnesty program”

of “catch-and-release” elaborated in the next section.

BARE LIFE AND BEDS

The challenges facing ICE’s management of detention bed space stem from

congressional pressure to detain more illegal immigrants with “historically inadequate” levels of

funding (Summerill 2007). Though advocates for the human rights of migrants have expressed

dismay at the continuing expansion of deportation and detention under the Obama

administration, the question asked year after year by ICE, Congress, the Office of the Inspector

General and the General Accounting Office has been, “why isn’t ICE detaining more

immigrants?”

The most straightforward and large-scale manifestation of bare life in existence today is

created in the camp of immigration detention. Though detention would seem intuitively to be the

most extreme state of exclusion from “society,” it can also be understood as a zoepolitical

inclusion in the bare life welfare system administered by DRO. The key resource cited as a

determinant of ICE reaching its goal of deporting all “illegal aliens” is the “bed space” where

detainees are housed. Bed space has been an obsession of all of ICE’s actionable discourse that

comes to grips with the agency’s failures in maintaining the welfare of its inmates.

The chronic shortage of detention bed space is blamed for creating a “de facto amnesty

program” for undocumented immigrants, particularly those from countries “other than Mexico”

(OTMs): “80 [percent] of the OTMs apprehended in FY 2005 were released on their own

recognizance” (Summerill 2007). The term OTMs was indispensable shorthand during 2006

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Congressional testimony on ICE’s challenges. In 2006 the task of uttering this term aloud in

Congress was assigned to an analyst with a Latino name, undoubtedly to the relief of many

present. Analyst Blas Nunez-Neto testified regarding the effects of the high release rate of OTMs

due to the delays in deporting them and lack of detention bed space (Nunez-Neto 2006).

While the panopticon has been enshrined as Foucault’s spatial model of surveillance and

control, ICE custody management presents a contemporary model of bioppower through

institutional obstruction, failure, blindness and opacity even to itself, a matrix of decentralized

sovereignty. Managing the expanding populace of detainees among a finite number of beds

which is only incrementally expanding under annual budget appropriations has been cited as a

significant logistical challenge by ICE.

ICE has claimed that its increasingly frantic transfer of detainees from prison to prison is

a way of maximizing available bed space. The number of times that detainees are transferred per

year now actually exceeds the total number of individual detainees, a tipping point reached for

the first time during the first six months of FY 2008 (TRAC 2009). Whatever the truth of ICE’s

claimed motives, there is little doubt among lawyers who have represented detainees that

transfers are also used by ICE and its contract jails as a form of legal obstruction and social

control. Moving a detainee to another jurisdiction has forced habeas corpus petitions to be

refiled, and the default response to hunger strikes among detainees has been the scattering of

protest leaders to different jails where they are placed in solitary confinement (Macri 2007).

These can be seen as uses of a zoepolitical technique to effect biopolitical exclusion.

Privatization

25

Migrant advocate discourse has had made much of the role of private prison corporations

in the immigrant detention system, often with the implication that the profit motive of private

corporations is creating policy. Corrections Corporation of America (CCA), the largest private

contractor to both the DRO and the federal correctional prison system, spends $1-$2M a year on

lobbying, not a noteworthy amount, but large for firm that size. However, in 2010 National

Public Radio reported that CCA helped effect the passage of Arizona Senate Bill 1070, which

permits police to detain suspected illegal immigrants and bring them to a federal facility. But

Wood does not draw the conclusion that CCA is systematically driving legislation (Wood 2011).

Further study of the political economy of government lobbying is needed in this area.

The more insidious effect is that the private companies managing immigrant detention

fuel ENDGAME’s deportation imperative with a profit-driven model while at the same time

further decentralizing sovereign power and effectively eliminating public accountability. The

privileges of private enterprise serve as an important barrier to DRO’s public transparency and

accountability. In response to a TRAC Freedom of Information Act request for the complete

records on the contracts and Intergovernmental Service Agreements pertaining to each detention

facility, ICE withheld information on whether a government agency or a private company

operated the facility. When TRAC approached the private prison companies known to manage

detention facilities, they refused to provide any information, citing confidentiality agreements

(TRAC 2005).

OPACITY AND SPECTACLE

Among migrant support networks, whether one is trying to obtain aggregate ICE data or

advocate for an individual detainee, the question often arises whether a particular blockage of

26

pertinent information is the result of ICE’s willing obstruction or the agency’s own

disorganization. ICE’s bureaucratic opacity even to itself cannot be discounted. In their public

documents is a constant theme of reflection and even self-flagellation, alternating with

statements of resolve to improve instrumentalities of detainee information. But most consistently

ICE portrays itself as the dedicated but chronically underfunded instrument of IIRA, charged

with an obligation to enforce illegality lawfully expanded by the sovereign act of Congress (DHS

2006).

Those concerned with the lives and welfare of the detainees are forced to look through

the distorted and spotty lens of ICE’s methodology, which is tied to its requests for funding and

to pre-empt litigation. It is on the basis of the average daily detention population that ICE makes

its request for bed space funding, so that has been the most consistent yet opaque datum made

available on a year-to-year basis.

Consistent year-to-year data pertinent to the welfare of the detainees themselves are

challenging to compile even after years of demands for transparency from civil rights groups and

NGOs. The importance and comprehensiveness of data has tended to form an inverse relation to

their duration. A General Accounting Office report gave figures for the average duration of a

detention, but the failure to differentiate the hugely disparate Mexican and OTM populations

rendered these numbers nearly meaningless, though conveniently low. A question as important

as how long individuals are detained thus eludes year-to-year study and is left to be illuminated

with the transitory clarity of a flashbulb. An Associated Press system snapshot found that, on the

evening of March 15, 2009, at least 4,170 people had been detained for six months or longer. Of

these, 2,362 were still fighting removal cases before immigration courts (Kunichoff 2009).

27

CONCLUSION

Willem Schinckel has referred to the modern state as a “zombie” staving off its

irrelevancy under globalization through the production of deportable bodies. There is a zombie-

like quality to the way the scattered sovereignties and broken bureaucracies of the ENDGAME

regime collectively have produced the staggering deportation machine they have.

The deportation regime of the U.S. is not the product of one president or administration.

Under the aegis of the ENDGAME decade, many different personages have successively

assumed sovereign power over life and death, as if hypnotized by the imperative to “deport all

illegals.” With respect to its chief goal, ENDGAME is a truly astounding achievement in the

annals of running to stand still. Throwing two million people into the abyss of

detention/deportation in 10 years, only to end with a larger “illegal” population than the outset,

tends to support the interpretation that the goal of immigrant detention is not to deport but to

produce deportability and thus an easily subjugated labor pool, as has been suggested by De

Genova and others.

But prior to attempting to incorporate immigration detention onto a broader

understanding of labor under state capitalism I have found it necessary to focus on the

governmentality of the institution of ICE itself. The topological approach employed in this work

has sketched a plausible outline of how the interconnected sovereignties of U.S. Congress,

localities, and private contractors create and sustain an expanding space of exception that

captures and immobilizes bare life in the person of the migrant detainee.

28

Rather than power emanating from a center, or the kind of executive fiat that calls into

being spaces of exception such as Guantanamo, the ENDGAME regime shows a

governmentality that thrives on failure, and a configuration of sovereignty seemingly blind to

itself, yet able to expand and multiply the means of state violence in service of an overarching

but irrational goal.

However, local sovereignty works both ways. In 2011 a rising political pushback against

Secure Communities gained momentum, with states governments declaring they are “opting

out,” and legal challenges from without and within as the ICE inspector general launched an

investigation of Secure Communities. Is a kinder, gentler regime of deportation possible? Could

the state of exception become a well-managed welfare state, an increasingly transitory non-space

propelled by an efficient detention and deportation of truly dangerous aliens?

This work cannot answer those questions, but the contradictions inherent in the modern

state and territorial citizenship seem intractable and not limited to the bare life of the detained

migrant. The sociospatial zones of indistinction created in the territorial U.S. under the

deportation regime have appeared in tandem with global trends in militarized policing and

privatized incarceration. Agamben’s claim that the camp where bare life is housed is the hidden

matrix of our society seems less theoretical when that camp is not offshore but local and growing

each year.

29

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