The Development of US Regimes of Disappearance: The War on Terror,Mass Incarceration,and Immigrant Deportation

Introduction

On June 19, 2017, the Supreme Court decided in the case Ziglar v. Abbasi ¹ that men incarcerated for months in the aftermath of the attacks on September 11, 2001 could not hold Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar accountable for treatment they endured during their detentions. The former detainees, which included six men of Arab and South Asian descent, alleged that they were subjected to hostile and abusive conditions, including frequent strip searches, 24-hour lighting that deprived detainees of sleep, and almost complete denial of access to communications with anyone outside detention. The abuse, they contended, occurred with full knowledge of the facility assistant wardens, who permitted the harsh conditions because of the detainees’ actual or perceived “race, religion, or national origin” ¹ .

In his dissenting opinion, Justice Stephen Breyer wrote: “History tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights” ¹ . As Justice Breyer alludes, the Ziglar v. Abbasi case highlights the insidious capacity of American institutions to suspend individual rights in times of crisis, which political theorists like Schmitt (1985 [1922]) and Agamben (2005) argue occur when a government declares “states of exception.” In this article, I argue that a central aspect of the post-9/11 detentions, among several other forms of imprisonment and detention, is the US state’s capacity to effectively disappear people. Although the legal justification for disappearing individuals into spaces of detention is often maintained by declaring crises or “states of exception,” this article considers how disappearance comes to characterize the everyday, long-term, and systemic workings of institutions.

Disappearance is typically discussed in terms of “enforced disappearance,” a type of state violence and repression in which an individual is abducted by state or state-affiliated authorities and detained in an unknown location. While this form of violence prevails across the world, including in the USA, discussions of disappearance often focus on countries in the Global South. In the process, enforced disappearances and other forms of state repression and violence that share its characteristics are overlooked in the USA.

In this article, I argue that “disappearance” as a conceptual category should be incorporated into existing discussions of forms of state violence around the world, including in the USA. While disappearance, as it is currently defined, is specific to a particular form of repression and should maintain this important distinction, several critical aspects of disappearance characterize contemporary institutions in the USA. First, disappearances focus on particular constituencies on the basis of sociological categories such as gender, age, race and ethnicity, and religion, among others. Second, disappearances foster a sense of uncertainty regarding the individual’s detention and render it difficult to ascertain information about the individual. And, last, disappearance has protracted and extended effects—psychological, social, economic—on the families and friends of the disappeared individual. Collectively, these three logics of disappearance have become indispensable to the workings of several institutions in the USA.

Following an overview of the concept of “disappearance,” I offer an analysis of how disappearance characterizes three US policies and institutions. Specifically, I examine Supreme Court cases concerning the War on Terror, mass incarceration, and immigrant detention and deportation as important sites for establishing legal precedents which can curtail or expand the possibilities of disappearance through incarceration and detention. In the US context, the logic of disappearance is closely implicated in the workings of capitalism, as financial benefits accrue to stakeholders in systems that attempt to disappear people.

On the Meanings of Disappearance

The term “desaparecidos,” or “disappeared,” as it is currently employed, was first utilized by the Guatemalan press to describe the widespread disappearances of individuals by the state (Scarpaci and Frazier, 1993). Thus, from its inception, the vocabulary of enforced disappearance has referred to a specific form of state violence and it continues to be invoked in this manner. The Working Group on Enforced or Involuntary Disappearances (WGEID) places specific emphasis on whether individuals are “deprived of their liberty” by the state or state-supported forces and whether the state refuses “to disclose the fate or whereabouts of the persons concerned” or “to acknowledge the deprivation of their liberty” (WGEID, 2018).

Among the defining features of enforced disappearance as outlined by the WGEID is the unknown fate of the disappeared individual and the complicity of the state in the disappearance. One of the most important aspects of enforced disappearance is the almost complete denial of information to families and loved ones by the state concerning the whereabouts of the disappeared person. It is precisely the ambiguity surrounding the circumstances of whether an individual remains alive or is deceased that distinguishes enforced disappearance as an important form of state repression worldwide.

In contrast with other types of state control such as arrests and executions, enforced disappearance not only functions as a mode of removing an individual from public life, it effaces them on a more abstract level. Gordon (2008: 113) has termed disappearances a kind of haunting, a constant reminder of ambivalence because “[d]eath exists in the past tense, disappearance in the present.” The disappearances also serve as a warning to those close to the disappeared and instill fear in anyone who might consider articulating perspectives contrary to those of the state.

It is clear from existing human rights law and the UN WGEID that enforced disappearance refers to a very specific form of state violence and it must remain so. In this article, however, I argue that there exist important features of disappearance that extend to other modes of state policy. First, enforced disappearances do not occur randomly. Depending on the political and social context, individuals who are vulnerable to disappearance disproportionately occupy specific categories such as gender, age, race, ethnicity, indigeneity, and religion. Although no comprehensive data exists on the gender of individuals who have been forcibly disappeared, evidence suggests that those most likely to be disappeared are young men (Dewhirst and Kapur, 2015). This pattern conforms to more general trends in how states police masculinity and can be observed in the number of individuals who are incarcerated in the USA (Connell, 1987). In other states, people of color, indigenous, and gay and lesbian individuals are more vulnerable to enforced disappearance (Guajardo, 2004). These disproportional figures often reflect how particular political affiliations align with existing, sometimes marginalized, groups.

Second, disappearances create a profound sense of uncertainty. Among the uncertainties specific to enforced disappearance is the ambiguity surrounding why the individual has been disappeared and whether s/he remains alive. Enforced disappearance also renders it difficult to ascertain simple information about a disappeared individual, including how s/he lives day-to-day, how to communicate with the individual in detention, and whether his or her life is under threat.

Last, enforced disappearance has protracted effects on the families of the disappeared individual, including economic, psychological, and social effects. With regard to economics, the disappearance of an individual from a family unit, particularly when that person contributed to the household income, places considerable economic strain on the family members left behind. Many women whose husbands were disappeared around the world report difficulty in sustaining their basic needs, often depending on extended kin for financial support (Dewhirst and Kapur, 2015). The uncertainty that characterizes disappearance also imparts significant psychological duress on the family members left behind, for whom investigating the disappearance, legally as well as forensically, can persist for decades (Gatti, 2014). In terms of social effects, many families endure the long-term stigma of the disappearance of a family member, who is then assumed by many members of the public to be a criminal.

Together, these features of enforced disappearance transcend this form of state violence in several ways. In the following section, I outline how an increasingly powerful executive branch and capitalism, particularly in the US context, motivate regimes of disappearance that characterize the War on Terror, mass incarceration, and deportation. By situating capitalism as central to the operations of terrorism, crime, and immigration control measures, I highlight how disappearance functions not only to police dissidence but also to produce profit.

Disappearances, Democracy, and Capitalism

In the USA, the production of regimes of disappearance have been driven by two forces: legal initiatives to amplify the power of the executive, and growing economic incentives to develop institutions that arbitrate freedom, including prisons and detention centers. With regard to the changing power of the executive, political theorists like Schmitt (1985 [1922]) have maintained that executives concentrate political power by declaring “states of exception,” or scenarios to which existing law does not apply. According to Agamben (2005: 2), states of exception create the space for a type of totalitarianism “that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system.” States of exception—called “states of necessity” in Germany, “emergency decrees” or “states of siege” in Italy and France, or “martial law” and “emergency powers” in the USA and Britain— often curtail individual rights in the interest of “national security” (Agamben, 2005; Rossiter, 1948). In the USA, the possibility of indefinite detention was facilitated by the declaration of a state of national emergency by former President George W Bush on September 14, 2001. Such declarations, which are eligible for renewal every six months, expand presidential powers related to national defense, environment, and public health, among other areas.

The post-9/11 national state of emergency permitted individuals suspected of belonging to al-Qaeda to be detained at sites like Cuba’s Guantánamo Bay facility. This declaration, in particular,

… erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being … neither prisoners nor persons accused, but simply ‘detainees’ they are the object of a pure de facto rule, of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from juridical oversight. (Agamben, 2005: 3)

In this way, states of exception effectively delineate new subjects—“detainees”—who lie outside the realm of the law and its protections, and thus can be effectively disappeared from public and political life.

While extensions of executive power have created the legal space to disappear people into prisons and detention centers, disappearances domestically and internationally have been facilitated in part by the vicissitudes of capitalism, which have created the literal spaces of disappearance. Foundational work in political sociology has long posited the connection between states, violence, and capitalism. Taking together Weber’s (1946: 78) definition of the state as the “monopoly of the legitimate use of physical force within a given territory” and Marx and Engels’ (1906 [1848]: 15) contention that the executive of the state is merely the “committee for managing the common affairs of the whole bourgeoisie,” the connections between states and violence, particularly when the state becomes the vehicle for capitalist wealth accumulation, define politics and policy.

In the “War on Terror,” a less emphasized aspect of this political and military initiative concerns its privatization. In what Alimahomed (2014: 85) terms the “Homeland Security State,” both domestic and international efforts to “combat” terrorism are largely privatized and contractors are “involved at every level of the war effort abroad, including the provision of defence weaponry, water, food, logistics, security, prisoner interrogations, and even health services for returning veterans.” The very declaration of this initiative as a “war” has facilitated the development of capitalist interests. As Worrell (2012: 31) describes,

… by framing terror as a ‘war’ it lends the notion that terror is concretely real and can be defeated through military and police techniques and resources and, incidentally, lends justification to the claims that we need to dedicate ever greater sums of money on military and police budgets.

The costs of the “War on Terror” remain largely unquantifiable and unknown—estimates published by the Watson Institute for the cost of the war to date amount to approximately 5.9 trillion dollars—but a range of industries have amassed millions of dollars in contracts to develop the apparatus of the Department of Homeland Security, which leads the efforts of the War on Terror (Crawford, 2018).

Like anti-terrorism policy and efforts in the USA, mass incarceration is driven by existing legal and political structures but is also distinctly motivated by capitalist interests. While a minority of prisons are now privatized, entire industries, ranging from textiles and food for prisoners to furniture and equipment for prison maintenance, depend on increasing numbers of inmates and new prison developments to enhance profit (Segal, 2015). The ancillary industries, like communications, depend on disappearance to sell their services; the subtitle of Securus Technologies, a provider of phone and video communications and money transfer between inmates and people outside detention, is “connecting what matters.” Thus, disappearance and remoteness sustain industries that sell the “bridge” between incarceration and freedom.

Immigrant detention and deportation function in ways similar to that of mass incarceration and are increasingly driven by for-profit interests. The privatization of immigrant detention emerged alongside the privatization of prisons in the mid-1980s and was led by two private prison corporations, CoreCivic (formerly Corrections Corporation of America or CCA) and The GEO Group (Ackerman and Furman, 2013). The latter developed the first contracts with the federal government to detain immigrants in 1987 and, to date, the majority of immigrant detention facilities, approximately 67 percent in 2012, are privatized (Reyes, 2018). As with prisons, immigrant detention centers require bond payments for an individual’s release while s/he awaits the appearance of the case before an immigration judge. Through an analysis of bond amounts and detention center capacity, Gilman and Romero (2018: 1) demonstrate that the Department of Homeland Security, “regularly sets bond amounts at levels that are not correlated to flight risk or danger, but rather to the length of time that the individual must be held in detention to keep the available space [of the detention center] full” in order to maximize profit for the privatized detention prison sector. The parallels between prison and detention system privatization extend also to profits accumulated through costly telephone communications and food production and preparation, among other sources of revenue.

Together, expanding power of the executive and capitalism have created political and economic conditions conducive to the development of spaces of incarceration and detention that effectively disappear people. In the following analysis, I draw on preeminent legal cases litigated before the Supreme Court to discuss three US contemporary practices—the disappearances of individuals after 9/11, mass incarceration, and immigrant deportation—which exhibit important features of disappearance. Together these institutional practices represent modes of disappearing groups across US society and have come to characterize how these institutions function on an everyday basis. By situating these US Supreme Court cases in dialogue with existing literature about the War on Terror, mass incarceration, and immigrant detention and deportation, I demonstrate how logics of disappearance have come to exert decades-long effects on both citizens and non-citizens.

US Regimes of Disappearance

Utilizing the Free Law Project database, I examine US Supreme Court cases that highlight disputes concerning how the state manages incarcerated or detained populations. Disputes surrounding habeas corpus, or lawful detention, frequently surface in these cases and the litigation examined here highlights how judiciary rulings risk further empowering the state to imprison and detain individuals. I consider Supreme Court cases from 1970 onward in the analysis because 1970 marks the escalation of the US prison population, and privatized immigrant detention began in the following decade. It is important to note that the number of cases examined by the Supreme Court concerning detention have risen sharply in the last 20 years, with over half of all cases on the subject appearing before the Supreme Court since 2001.

Through a discussion of these Supreme Court cases and existing literature on post-9/11 disappearances and the War on Terror, the contemporary criminal legal system, and the immigration system, I argue that logics of disappearance have increasingly come to characterize the ways in which these US institutions function.

The “War on Terror”

During the immediate aftermath of the terrorist attacks at the World Trade Center and the Pentagon on September 11, 2001, state authorities embarked on rapid information gathering to preempt any potential future violence and to acquire an understanding of who was responsible for the attacks. On the basis of tips and subsequent FBI investigative work, hundreds of men were detained across the country. According to a heavily redacted Department of Justice (DOJ) report issued by the Office of the Inspector General in 2003, the majority of the men detained following 9/11 were apprehended in New York City (Department of Justice, 2003). The report indicates that the detained comprised over 20 nationalities although–of these 20 provided–the majority were from 16 countries in North Africa, the Middle East, and South Asia (Department of Justice, 2003). Those detained were subjected to a “hold until cleared” policy, which was an understanding between the FBI and the Immigration and Naturalization Service (INS) that individuals were to be “held without bond until the FBI cleared them of any connections to terrorism” (Department of Justice, 2003). The policy was not, according to the DOJ report, “memorialized in writing” and the origins of the policy remain unclear (Department of Justice, 2003). However, these kinds of detentions, often referred to as “preventative detentions,” were already authorized by the US state and after 9/11 were implemented by “employing preexisting immigration law, the material witness statute, pretextual prosecution, and an asserted power to detain ‘enemy combatants’” (Cole, 2009: 695). Such detentions are not designed to be punitive though their application came under scrutiny after 9/11 in part because little evidence could be marshalled that the hundreds of individuals who were detained presented serious threats to national security (Cole, 2009).

Two Supreme Court cases are especially important to the case of post-9/11 disappearances and detentions: Boumediene v. Bush (2008) and Ziglar v. Abbasi (2017). The case of Boumediene v. Bush represents a consolidation of two habeas corpus petitions, one led by Lakhdar Boumediene, who was held in military detention by the USA at the Guantánamo Bay detention facility in Cuba and the other was a 16-person habeas corpus petition that composed the Al Odah v. United States case. At issue in these petitions, which were advanced largely by families of detainees, was whether men detained in Guantánamo Bay had the right to seek habeas corpus review to determine whether their detentions were lawful in light of the evidence possessed by the government of wrongdoing as “enemy combatants.” The court maintained that detainees had such rights in a majority opinion, which was a significant challenge to prevailing modes of detention at Guantánamo Bay Naval Base. At the same time, however, the rulings risk reaffirming detention by placing the onus on the individual detainee to legally challenge his or her detention rather than to contest the detentions of individuals in jurisdictionally vague spaces like the Guantánamo Bay facilities in Cuba. As a consequence, the ruling extends the possibility that, in Agamben’s (2005: 2) words, detention as a “state of exception” could become a “paradigm of governance.”

The limited rights of individuals detained as part of the War on Terror, especially those residing in the USA, is most recently illustrated in the Ziglar v. Abbasi case. Many of the individuals apprehended in the days and weeks after 9/11 were detained in the Metropolitan Detention Center in Brooklyn, New York, where plaintiffs subsequently alleged they experienced numerous abuses, including limited communications with anyone outside the facility and excessive amounts of time spent in solitary confinement. The Supreme Court ruled that detainees could not sue individual administration officials for damages, which in effect established a precedent to protect individual administrative officials from facing litigation for implementing government responses to national security issues, among others. As these two important Supreme Court cases demonstrate, policy that was developed following 9/11 opened the juridical space for the indefinite detention of individuals suspected of terrorism and, while the Boumediene v. Bush case attempts to preserve habeas corpus rights for detained individuals, the courts have limited the accountability of top administrators for violations endured during detention.

As the Ziglar v. Abbasi case alleges, the “War on Terror” also offers ample evidence of how individuals were vulnerable to disappearance into spaces of detention in part because of their belonging to social categories of race and ethnicity, religion, and citizenship status. As formerly detained men argue in the case, they were suspected of terrorist connections, in many instances, because of their nationalities and their Islamic faith, a pattern that persists in contemporary engagements between Muslims and law enforcement (Alimahomed-Wilson, 2018). Men in particular have been subjected to racialization as potential terrorist threats (Selod, 2014). In other cases, immigration violations among men from North Africa, the Middle East, and South Asia, which would have otherwise likely been overlooked by INS, became the pretense for months-long disappearances (Wilgoren, 2001). Even in the context of detention itself, strip searches were filmed and often hosted in front of female security personnel for the purpose of emasculating the detained men and to “intensify the humiliation based on shared understandings of Arab/Muslim culture” (Cainkar, 2009: 122). These patterns make it clear that sociological categories—in particular gender, religion, and nationality—made an individual vulnerable for disappearance following 9/11.

The disappearances of men after 9/11 was accompanied by uncertainty among their families and loved ones about the conditions of their detention, which was a key source of contention in the Ziglar v. Abbasi case. Calls from detainees to individuals outside of detention centers were only permitted within the USA and, thus, individuals with friends and family outside US borders could not readily and directly communicate their conditions to close kin (Wilgoren, 2001). As Kumar (2012) discusses in the context of the racialization of Muslims in the USA before and after 9/11, hundreds of individuals have been subjected to disappearances with little understanding of how they came to be detained. Uncertainty, a key feature of disappearance, surrounded cases of post-9/11 disappearance in the USA, and still persists as many Arabs, Iranians, Africans and South Asians continue to be surveilled and detained under the auspices of the “War on Terror” (Bayoumi, 2009; Kumar, 2012). These patterns of targeted detention and disappearance also characterize policing of terrorism globally, including in the UK (Kundnani, 2014).

While the uncertainty of the disappearances themselves was profoundly disruptive for families, disappearance also introduced a range of extended economic, social, and political effects on the families and friends left behind. A number of families faced deportation because a family member was apprehended on suspicion of terrorism, which led authorities to initiate deportation orders on multiple family members (Sheikh, 2011). In addition, many families lost valuable contributors to their household income as disappeared individuals were out of work for months without the possibility of contacting employers, who then terminated their employment. Thus, an individual’s disappearance was not limited in scope but, rather, fundamentally transformed the lives of family members and friends, who themselves became vulnerable to disappearance in multiple ways.

Mass Incarceration

The USA currently has the largest proportion of its population incarcerated within the criminal legal system. While other countries utilize incarceration sparingly, over 2.1 million individuals are currently incarcerated in the USA and the number of individuals under the purview of the criminal legal system more broadly, including those incarcerated, in jail, and on parole or probation, is over 6.6 million (Bureau of Justice Statistics, 2018). This system, referred to by scholars as “mass incarceration,” has developed over the last 40 years and is a product of several important legal changes, including policies that penalized drug offenses, granted prosecutors greater discretion, and instituted mandatory minimum sentencing that required individuals to remain in prison for longer periods of time (Alexander, 2012).

Mass incarceration has elicited widespread political scrutiny, which is demonstrated in Supreme Court cases on the subject that revolve around Eighth Amendment concerns about “cruel and unusual punishment.” An important case ruled in favor of incarcerated persons was Brown v. Plata in 2011, which ordered the State of California to reduce its prison population given existing overcrowding that compromised healthcare administration. The case represents a very significant prioritization of prisoner health and wellbeing over increasing prison capacity. The ruling, however, only mildly challenges the well-established legal deference to prison authorities to manage the majority of internal prison affairs. The autonomy of prison administrators to run prisons is established in a range of cases, including Pell v. Procunier and Procunier v. Martinez in 1974 and Turner v. Safely in 1987, and often stands in contradiction to First Amendment rights (Shults, 2012). Furthermore, while limiting the number of prisoners is an important intervention in enhancing quality of prison life, this ruling does not impact how prison life is endured disproportionately by certain sectors of the population, which is one of the largest critiques of mass incarceration in its current form.

Since the nation’s inception as a colony, the figure of the “criminal” has been racialized and has defined the development of surveillance, policing, and criminalization (Browne, 2015; Ross, 1998). Indigenous peoples were deemed by colonists to be violent “savages” and laws were developed to police their acculturation into European social norms; in states where sizeable indigenous populations continue to reside, they are incarcerated at disproportionately higher rates than whites (Ross, 1998). In the case of African Americans, the context of the trans-Atlantic slave trade configured every Black man and woman as a potential criminal who might abscond from their involuntary servitude, which inspired the development of surveillance systems in the USA (Browne, 2015). This systemic racism persists in the present, disappearing Black men, in particular, from communities across the USA (Feagin, 2001). This inequality is evinced specifically in disproportionate incarceration of people of color where “more than one in five young noncollege black men were behind bars on a typical day in 2004” (Western and Wildeman, 2009: 228).

In addition to the disproportionate impacts of mass incarceration on communities of color in the USA, the system mirrors the uncertain quality of disappearance. As the population of incarcerated people grew, sprawling facilities were constructed. Over half of this construction occurred during the 1990s, outside metropolitan areas, where many communities competed for the investment by offering “economic incentives in the form of tax breaks, infrastructure subsidies such as roads and sewers, and free land” (Glasmeier and Farrigan, 2007: 275). This change rendered such spaces remote from day-to-day life for many Americans and, as Gottschalk (2006: 18) states, “the contemporary carceral state has been largely invisible.” In fact, many scholars use the language of invisibility to describe contemporary aspects of mass incarceration because prisons and knowledge about them remain elusive and generally inaccessible (Gottschalk, 2006; Pettit, 2012). It is in this sense that mass incarceration mirrors disappearance as individuals are dramatically removed to remote locations, around which uncertainty prevails. On a day-to-day level, uncertainty characterizes how families, particularly children, process the incarceration of their loved one. According to Wright and Seymour (2000: 21),

… uncertainty pervades the child’s life when a parent is incarcerated, touching basic life issues. Answers to questions such as “what is going on?” “where will I live?”, “who will care for me?” “when will I see my parent again?”, “when will she/he [be] home again?”, “will there be enough money?” and “what will happen next?” remain nebulous. The child enters a period of remarkable instability and uncertainty, not even knowing with what he or she must cope.

While uncertainty may be especially acute for children, the effects of mass incarceration and its uncertainties broadly affect families and communities as well.

On a social level, mass incarceration effectively disappears men and women from their families and strains the bonds they share together. Comfort (2007) describes the impact of incarceration on families as one of “doing time together” as couples attempt to mitigate incarceration by exchanging correspondence, phone calls, and packages. This coping strategy, however, “reinforces the secondary prisonization of nonincarcerated women by repeatedly subjecting them to extensive penal scrutiny and control” (Comfort, 2007: 66). Although means of communicating in the case of mass incarceration exist, unlike with enforced disappearance, the economic costs associated with the ability to bring the disappeared individual into existence, as it were, on the phone or in person cannot be underestimated. Calls made from prisons are typically collect calls, and families often spend US$1000 to US$2000 a year on calls (Katzenstein and Waller, 2015). This is despite recent interventions of the Federal Communication Commission to curtail what it calls “excessive rate and egregious fees on phone calls paid by some of society’s most vulnerable people: families trying to stay in touch with loved ones serving time in jail or prison” (Federal Communication Commission, 2017). Thus, to people of lower socioeconomic status the costs of visiting a prison and even maintaining contact through calls presents considerable economic burden, making their loved ones effectively inaccessible. The impact on male children is particularly acute as scholars find that the absence of an incarcerated parent from a child’s life significantly increases his likelihood of imprisonment (Western and Wildeman, 2009). The literal disappearance of an incarcerated individual from family life, including monumental life events such as births, deaths, marriages, and graduations, thus imparts significant social and psychological effects on the families and friends left behind.

Immigrant Detention and Deportation

Immigration and naturalization policy in the USA has been a matter of significant political import for centuries with the first formal policy promulgated shortly after national independence. Policies have historically oscillated between attempts to limit migration and to expand opportunities for naturalization (FitzGerald, 2015). Deportations, however, increased after the implementation of the Illegal Immigration Reform and Individual Responsibility Act (IIRIRA) in 1996 and have continued with bureaucratic shifts in the institutions responsible for immigration matters in the USA (Wheatley, 2012).

The Immigration and Naturalization Service was part of the Department of Labor in the 1930s, and was later transferred to the Department of Justice before being formally abolished following 9/11. Immigration matters are now the purview of the Department of Homeland Security, created in 2003. The Department is composed of three entities called the US Citizenship and Immigration Services, US Customs and Border Protection, and US Immigration and Customs Enforcement (ICE). The focus of immigration shifted after 9/11 and recent scholarly debates about migration have examined how immigration systems have intersected the criminal legal system, expending significant resources on enforcement and deportation (Coleman and Kocher, 2011; Doty and Wheatley, 2013; Golash-Boza, 2016; Romero and Zarrugh, 2018). Drawing on the language of “prison industrial complex” as it relates to mass incarceration, some have referred to the contemporary immigration system as an “immigration industrial complex” (Doty and Wheatley, 2013). Coleman and Kocher (2011: 235, emphasis added), in fact, refer to deportation policies as a “social control project which encourages the disappearance of immigrant bodies from the public sphere.”

Among the most important Supreme Court decisions related to immigration and detention is the recent case of Jennings v. Rodriguez ² in 2018, which considers the right of the federal government to detain immigrants while determining the lawfulness of their presence in the country. The claim was brought by a US permanent resident, Alex Rodriguez, who was convicted of a misdemeanor drug possession and joyriding in 2004 and subsequently detained. He remained in detention by April of 2007 at which time he filed a habeas corpus petition arguing that he should be permitted a bond hearing to assess the justification for his prolonged detention. Operating on the basis of existing immigration law, the US Circuit of Appeals for the Ninth District ruled that immigrants detained for at least six months should receive a bond hearing. However, this argument was overturned by the Supreme Court, which disputed the Court of Appeal’s finding that existing immigration law allows for periodic hearings. Justice Breyer, who authored the dissenting opinion supported by Justices Ginsberg and Sotomayor, emphasized that this was likely to be the first time that the Supreme Court interpreted the law to allow long-term confinement in the absence of bail opportunities. He stated in his dissent, “We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation … liberty has included the right of a confined person to seek release on bail” (Jennings v. Rodriguez, 2018). An important implication of this ruling includes the possibility of indefinite detention for both undocumented and documented immigrants, which arguably opens the legal space for a form of disappearance that stands to disproportionately impact certain sectors of the population.

In terms of parallels with forced disappearance, the findings of Jennings v. Rodriguez may penalize particular racial and ethnic groups more than others given existing immigration patterns. Racialization saturates US policy on matters of naturalization and deportation. The Naturalization Act of 1790 permitted naturalization exclusively to free white persons of “good moral character,” which excluded African Americans, indigenous peoples, indentured servants, and individuals with a criminal record. In recent history, Latinxs in particular have been racially framed as “illegal,” which has had implications for deportation practices (De Genova, 2002). Numerous state and local laws, such as the Arizona Senate Bill 1070, have permitted law enforcement officers to inquire about immigration status during routine traffic stops, a bill which critics argue facilitates racial profiling (Doty and Wheatley, 2013). Thus, particular bodies become surveilled by the state as “illegal,” “alien,” or “stranger,” and are vulnerable to disappearance into detention and, eventually, deportation.

With regard to the second feature of disappearance, uncertainty pervades the contemporary US immigration system and, recently, has been instituted as a policy to deter undocumented migration. The process following one’s apprehension by ICE is not transparent and, as Romero (2018: 118) argues, “one of the most prevalent emotions constant throughout the entire detention experience for families is the uncertainty surrounding their detained relative.” Immigrant detainees are often transferred from a detention site in the state where they were apprehended to another, more distant, detention center prior to their formal removal, and information concerning their whereabouts can be difficult to ascertain (Human Rights Watch, 2009). Even the location to which individuals are deported can be unclear—some deportees to Mexico report that individuals are left at the border—creating a situation in which an individual is literally disappeared with few resources to find his or her way out of obscurity (Wheatley, 2012). In 2018, the Trump administration pursued a “zero-tolerance” policy to criminalize undocumented migration, and the separation of families was a deliberate strategy of deterrence. In a confidential memo, Homeland Security Secretary Kristjen Neilsen noted, “senior immigration and border officials” had stated that “filing criminal charges against migrants, including parents traveling with children, would be the ‘most effective’ way to tamp [sic] down on illegal border crossings” (Wang, 2018). In this case, disappearance of children by separating them from their parents and creating uncertainty concerning their whereabouts is literally a strategy of state immigration policy.

The protracted effects of disappearance through detention and deportation are especially felt by the families and friends of the disappeared migrant. Emotional and psychological strain, particularly in mixed immigration status families and among children who endure the deportation of a parent, are well documented in the literature on migration and families (Dreby, 2012; Hagan et al., 2010). Like mass incarceration, the modes of remaining in contact with an individual, such as travel and phone communications, as well as the cost of an immigration attorney and the associated fees can exact considerable economic costs, generally amounting to thousands of dollars (Romero, 2018). Thus, the disappearance of a family member into spaces of detention and, in many cases, eventual deportation, disproportionately constitutes a hardship for individuals of lower socioeconomic status and is increasingly driven by capitalist interests, as we observe in the case of mass incarceration.

Conclusion

Enforced disappearance as a mode of state repression has historically referred to a very specific form of violence which is defined by the removal of an individual by state authorities to a remote, undisclosed location. This form of violence is a distinct mode of political repression, with specific theoretical implications for understandings of both state violence and social movements, and sustained attention toward enforced disappearance should emphasize these characteristics. However, I argue that some important features of disappearance characterize other modes of state violence and governance. These aspects of disappearance—the targeting of specific social groups, the uncertainty surrounding the detained individual, and the extended social, economic, and psychological effects on family and friends left behind—constitute a logic of disappearance that, in the US context, operates in the War on Terror, mass incarceration, and immigrant detention and deportation. They have with varying degrees have been challenged in US Supreme Court cases. The expansion of these institutions continues in part because they serve as a source of profit for companies and corporations that build spaces of incarceration and detention, and serve their needs. Disappearances domestically and internationally, thus, are facilitated, in part, by the workings of capitalism.

The powerful effects of disappearance continue to disproportionately impact Muslim, Arab, African, and South Asian citizens and noncitizens in the USA and throughout the world in global “War on Terror” efforts. These “counterterrorism measures” increasingly operate in ways that facilitate disappearance. From the use of secret evidence in trials, to which defense counsel of men suspected of terrorism do not have access, to the “pre-emptive” and “preventative” measures that permit the broad surveillance of Muslim communities, the logic of disappearance pervades ongoing efforts to respond to 9/11 and its aftermath domestically (Kumar, 2012). At the international level, modes of surveillance, often drones, examine individual movements to construct “pattern-of-life” analyses to determine whether an individual is a likely terrorist and, accordingly, should be further surveilled, disappeared, or assassinated outright (Chamayou, 2015).

The regime of disappearance that characterizes mass incarceration as it currently functions, isolates individuals in prisons far removed from public life, literally disappearing large sectors of men from family and social life. On a political level, temporary, and sometimes permanent, political disenfranchisement for a felony conviction suspends the political rights of the formerly incarcerated and effaces their political voice for years and decades. The latter approximates one of the most distinctive features of enforced disappearance—the disappearance of political views that may depart from or run contrary to existing hegemonic ideas.

The process of deportation distinguishes this regime from that of mass incarceration as it both criminalizes the migrant, who faces additional legal reprisal should s/he return after deportation, and facilitates a disappearance completely outside the context of US borders. The recent developments in immigration policy, particularly as it relates how policies have been implemented with regard to children, exemplify how strategies of detention occupy a central role in the politics around immigration.

Collectively, the day-to-day workings of these state policies and practices operate with a logic of disappearance that, in the US context, is often driven by the interests of capitalism. These regimes of disappearance also overlap in compelling ways, as immigrant detention mirrors mass incarceration and detention, and deportation for immigration violations facilitates political goals of the “War on Terror.” While these regimes of disappearance depart in certain critical ways from traditional definitions of enforced disappearance as it is recognized in international law, the framework of disappearance outlined here offers a critical approach and a new vocabulary to analyze a range of policies and institutions that largely define contemporary politics in the USA.