"Like a Disembodied Shade": Colonization and Internment as the American Way of Life
Issue #71, December 2004
[T]he contention seems to be that, if an organized and settled province of another sovereignty is acquired by the United States, Congress has the power to keep it, like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period; and more than that, that after it has been called from that limbo, commerce with it is absolutely subject to the will of Congress, irrespective of constitutional provisions.
Downes v. Bidwell (1901), C.J. Fuller, dissenting
With these words, Supreme Court Chief Justice Fuller described the legal status of Puerto Rico, which the United States had "acquired" from Spain in 1898. More than a century later Puerto Rico still remains in this "intermediate state of ambiguous existence." Whereas in 1898 Puerto Ricans had their own parliament, full Spanish citizenship, and political representation in the Spanish parliament, today they have no representation in Congress and only qualified U.S. citizenship unless they are born in the U.S. proper, in which case they have birthright citizenship under the Fourteenth Amendment. As recently as 1996 the House Committee on Resources noted that the "compact" currently governing U.S.-Puerto Rico relations does not meet the United Nations’ standards for self-government, that Puerto Rico is still an unincorporated U.S. territory, and that Congress can unilaterally revoke local self-government and U.S. citizenship.
This line of reasoning continues to be applied not only to external territories over which the U.S. exercises jurisdiction, but also to American Indian nations, immigrants and – in the name of "protecting national security" – to a wide range of persons deemed Other by virtue of race, religion, national origin or political association (real or presumed) have been and continue to be subjected to an "intermediate state of ambiguous existence" in which the United States government exercises jurisdiction unconstrained by the rule of law.
The native peoples of this land are in many respects the quintessential American Other, for it was by contrasting their "savagery" against the "civilization" of the settlers that the latter both legitimated their appropriation of the land and forged their identity as "Americans," a perspective most clearly articulated in the notion of Manifest Destiny. Despite the fact the United States had entered into numerous treaties with American Indian nations, thereby acknowledging them to be independent sovereignties– and, indeed, still depends upon those treaties to justify its claims to much of its territory – by the 1830s the Supreme Court was declaring that the United States would no longer regard them as either independent or fully sovereign. This declaration that all American Indian nations – even those the U.S. had not encountered as of the 1830s – would henceforth be considered as internal colonies laid the groundwork for the U.S. government's subsequent assertion of plenary power over Indian affairs.
Thus more than four hundred native nations on this continent were subjected to the arbitrary power of the U.S. government and, as a result, most were interned en mass. Well into the twentieth century, American Indians were generally required to obtain a permit from a federal Indian agent – or in some cases the military – in order to leave their assigned areas. In the 1879 Standing Bear case, a federal court held that the army could arrest a group of Poncas sent to a reservation in the "Indian Territory" of Oklahoma who attempted to return to their traditional lands in eastern South Dakota without permission. Similarly, in the 1896 case of Ward v. Race Horse the Supreme Court ruled that the Lakotas were not free to exercise their treaty-guaranteed right to hunt in customary locales beyond the boundaries of their reservations. It was not until the By-a-lil-le case in 1909 that a formal opinion was rendered holding that American Indians could not be classified – or treated – as "prisoners of war" merely because they were Indians.
Although "military necessity" and "national security" were frequently invoked to justify the mass internment of American Indians, war was seldom a determining factor. No hostilities were occurring during the 1830s, when, for example, the army was employed to round up the Cherokees, holding them in stockades until they were sent onto the "Trail of Tears," a 1,200 mile forced march from their Georgia/North Carolina homeland to Oklahoma during which about half of them died. The same is true with respect to the other four "Civilized Tribes"– Choctaws, Chickasaws, Creeks and Seminoles – all of whom had shared the Cherokees' fate by 1840.
Even when warfare was involved, the mass internment of civilians most often occurred after the fighting was over and typically lasted for years, often generations. To give just one example, following the escape and protracted military resistance mounted by a small band of Chiricahua Apaches during the 1870s and '80s, the government shipped the entire Chiricahua population, including not only children, elders, and women, but those men who had fought for the U.S. against their "renegade" relatives, to the Forts Marion and Pickens military prisons in Florida and later to the Mt. Vernon Barracks in Alabama. There they were confined in an utterly alien climate, with a resulting death toll of some forty percent, until the winter of 1913-14. By that point, even U.S. officials acknowledged that it was "too much to keep people more than 26 years in confinement for crimes they never committed" and transferred the survivors to a reservation in Oklahoma.
This exercise of plenary power by the United States government over internally colonized indigenous peoples has continued, resulting in, among other gross injustices, the forced removal of generations of American Indian children from their families and their imprisonment in "boarding schools;" the involuntary sterilization of staggering numbers of women of child-bearing age by the Bureau of Indian Affairs (BIA)'s Indian Health Services; the leasing of the most profitable native land and mineral resources at prices dramatically below market value, and the government's exercise of complete control over – and subsequent inability to account for – billions of dollars of funds held in "trust" for American Indians.
The United States government has asserted – and the Supreme Court has upheld – this plenary authority over not only internally and externally colonized peoples, but over immigrants as well. Thus, in the 1880s and 1890s when Congress passed legislation excluding all Chinese laborers in violation both the Constitution and the 1868 Burlingame Treaty with China and the Court refused to engage in an analysis of constitutional rights – generally acknowledged to apply to noncitizen residents – because deportation is not seen as punishment. The Chinese exclusion cases were relied on during the Cold War when the Court held that, without hearings of any kind, the German wife of a U.S. citizen could be excluded and a permanent resident who had returned from visiting his ailing mother in Europe could be held indefinitely on Ellis Island, based upon the Attorney General's unsupported assertion that admitting them would be "prejudicial to public interest." In turn, federal courts have used these cases to justify the indefinite detention of undocumented Cubans who came from the port of Mariel in 1980 and were deemed "excludable" by U.S. immigration authorities, the detention of Haitian refugees pending adjudication of their claims for political asylum, and the subsequent interception and forced return of Haitians on the high seas. In 1993 the Supreme Court upheld a policy under which the Immigration and Naturalization Service (INS) was detaining about one thousand unaccompanied children each year, often in adult facilities, rather than releasing them to non-custodial family members or guardians.
Invoking this plenary power over immigration, in the 1980s and 1990s the INS used secret evidence to detain and deport a number of Muslims and persons of Arab descent. And it is, of course, this power, which has been invoked since the attacks of September 11, 2001 to allow the Justice Department to disappear, detain, interrogate and deport thousands of persons from Muslim and Middle Eastern countries and to impose a variety of onerous restrictions on others identified on the basis of age, gender and country of origin. And it is a combination of the ability to indefinitely detain noncitizens in the immigration context with the exercise of extralegal jurisdiction in "unincorporated" territories which has allowed the U.S. to hold over six hundred men and boys at the Guantánamo Bay Naval Base for the better part of three years, without access to family or lawyers, unprotected by international humanitarian law or the provisions of the Geneva Conventions.
In each of these broad areas of U.S. law and policy – the governance of external colonies, American Indian affairs, and matters relating to immigration – the government has asserted, and the Supreme Court has accepted, that it can exercise extraordinary powers, unconstrained by the Constitution or international law, to protect the national security. Implicit in this argument is the notion that the citizenry need not worry about – or attempt to restrain – this exercise of unlimited power because Americans are protected by such actions. Yet this argument is patently false, unless one restricts the notion of "American" to a very narrow category of privileged persons defined not only by citizenship but by race, religion, national origin, economic class, and a willingness to support the status quo.
In the aftermath of September 11, we have seen the United States government arbitrarily and indefinitely detain and interrogate at least two U.S. citizens, Yaser Esam Hamdi and Jose Padilla, without any semblance of due process. Hamdi and another U.S. citizen, John Walker Lindh, were taken prisoner in Afghanistan, where they were allegedly fighting with the Taliban. Lindh was immediately taken to Alexandria, Virginia and charged with conspiring to kill Americans. As White House spokesman Ari Fleischer announced, "the great strength of America is he will now have his day in court" and, in fact, Lindh soon appeared in a civilian criminal court where, represented by counsel and supported by his family, he plead guilty to reduced charges.
Hamdi, on the other hand, was placed in a naval brig in Norfolk, Virginia and held incommunicado for nearly three years on the government's assertion that he was an "enemy combatant." In June 2004 the Supreme Court held that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." The Court did not require that the "neutral decisionmaker" be a federal court, or that constitutional protections normally pertaining to criminal proceedings be extended to such "citizen-detainees." Nonetheless, rather than providing Hamdi with even minimal due process, the government chose to release him, requiring that he return to Saudi Arabia.
In light of its consistent history of attempting to deport politically undesirable aliens on the basis secret evidence, the government's desire to deport Hamdi rather than give him a hearing is not particularly surprising. However, in Hamdi's case, there was a complication for, although perceived as a "politically undesirable alien," he was a U.S. citizen. As Leti Volpp explains: In the American imagination, those who appear "Middle Eastern, Arab, or Muslim" may be theoretically entitled to formal rights, but they do not stand in for or represent the nation. Instead, they are interpellated as antithetical to the citizen's sense of identity. Citizenship in the form of legal status does not guarantee that they will be constitutive of the American body politic. In fact, quite the opposite: The consolidation of American identity takes place against them.
In Hamdi's case his formal status as a citizen of Middle Eastern descent was superceded by this "antithetical" identity and his constitutional rights were voided by requiring, in return for his release, not only that he agree to "deportation" to Saudi Arabia but that he renounce his U.S. citizenship. In essence, Lindh, of European descent, was perceived as a real American despite his apparently treasonous activities, while Hamdi's Otherness trumped his citizenship.
The question now becomes, what of Jose Padilla? Padilla is Puerto Rican, born in Brooklyn and thus, like Lindh and Hamdi, a U.S. citizen by birth. But, unlike Lindh and Hamdi, he was not captured in combat but was arrested at Chicago's O'Hare Airport on a material witness warrant. Two days before a scheduled court hearing, he was declared an "enemy combatant" and ordered into military custody, where he remains as of November 2004. The Supreme Court heard Padilla's case in June 2004 but failed to reach the merits, holding that the case had been filed in the wrong jurisdiction and thereby delaying resolution of his case.
Regardless of the position ultimately taken by the Court, the executive branch's treatment of Padilla raises significant issues about the nature of citizenship in a colonial context. Although Padilla is a U.S. citizen, he is both an "internal Other" by virtue of his race and ethnicity, and perceived as an "external Other" as a result of his conversion to Islam and the political associations attributed to him. As such, he is perhaps best described, as a "non-alien" – a citizen without the protections that status is thought to entail. One presumes that the government might wish to treat Padilla as it did Hamdi, stripping him of his citizenship and avoiding constitutional complications by deporting him, but this would be difficult in light of the fact that the United States occupies Puerto Rico and has declared its inhabitants to be U.S. citizens.
Unprotected by a separate sovereign but denied the constitutional rights of a U.S. citizen, Jose Padilla is thus at the mercy of the U.S. government's unrestrained and arbitrary exercise of power. Like his homeland, he continues to be held "like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period." Padilla's situation exemplifies not only the threats to civil liberties embodied in the current "war on terror" but the fact that the United States government continues to exercise plenary power over large groups of those deemed Other, denying them the protections of both the Constitution and international law. When challenged, the government explains away each situation as "aberrational," an exception to the rule of law necessitated by an imminent threat to the national security. Yet such when such assertions of raw power are viewed collectively, it is clear that they are the norm with respect to all but a privileged few.
This is the essence of colonialism – the assertion of jurisdiction by one people over another for some combination of economic, political and/or military advantage and the concomitant denial of self-determination to the colonized. Furthermore, since the formation of the United Nations the international community has recognized, both in customary law and in numerous international treaties, that all governments are bound to protect the fundamental human rights of all persons under their jurisdiction. The United States proclaims itself a champion of the rule of law and often holds out the U.S. Constitution as an exemplary framework for the protection of human rights and liberties. Yet, when it unilaterally exercises jurisdiction over peoples and territories and claims a "sovereign" prerogative to abrogate the fundamental rights of those under its power, it is functioning as a colonial state. Faced with this reality, we have two choices.
Writing for the Supreme Court in Downes v. Bidwell, Justice Brown acknowledged that some might fear that the government's exercise of plenary power would result in tyranny. He reassured us, however, that we need not worry about despotism, for "there are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests." We can choose to acquiesce in the government's exercise of raw power, putting aside concern for the rule of law and relying instead on the "principles of natural justice inherent in the Anglo-Saxon character." But we have seen, and continue to see, the gross violations of fundamental human rights, which result from this course of action.
The other option left us is to follow the advice of Supreme Court Justice Robert H. Jackson who, in his capacity as the chief U.S. prosecutor for the Nuremberg Tribunal (1945), stated, "We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law." In this spirit we can insist that the government which purports to represent us comply with the rule of law – as articulated in both the U.S. Constitution and in international law – in all of its actions and with respect to all territories and peoples over whom it exercises jurisdiction. To the extent we fail to do so we are complicit in, and therefore responsible for, the maintenance of a colonial order in which law serves only to protect and privilege the colonizers.
Leti Volpp, "The Citizen and the Terrorist," UCLA Law Review 49 (2002): 1575, 1594.
Sidney L. Harring, Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century. Cambridge, UK: Cambridge University Press, 1994.
Natsu Saito is Professor of Law, Georgia State University, and Professor of Ethnic Studies, Colorado University in Boulder.