Indefinite Detention,Colonialism,and Settler Prerogative in the United States

‘National Security’ Internments

The term ‘indefinite detention’ generally brings to mind the extrajudicial internments of people deemed threats to the national security under conditions that replicate those Agamben describe as characteristic of the ‘camp’. The extent of these detentions and the conditions under which people are held vary depending upon the people(s) interned, the national political climate, and the United States' need to maintain its image as the paragon of liberty and democracy (Klein and Wittes, 2011: 88). The sites are not, however, subject to the rule of law and, as most recently illustrated by the United States’ ongoing detention of men and boys at its Guantánamo Bay Naval Base, the detainees may not only be reduced to bare life but also tortured, physically and psychologically, to the point that they prefer death (Pugliese, 2015).

The United States’ government has consistently asserted a prerogative to detain persons considered politically subversive, without charge or trial, particularly during times of war. Even before US independence, Thomas Jefferson helped draft Virginia laws that allowed the government to remove citizens beyond ‘military zones’ and ‘to restrain all persons who refused to take the oath of loyalty to the American cause or who were merely suspected of disaffection’ (Levy, 1989: 31–32). The Alien Enemies Act, first passed in 1798, still allows the president to arrest, detain, and remove civilians who are subjects or citizens of countries that the United States is at war with, or that pose a threat of invasion or attack, without any individualized determination that they pose a danger to the United States (Alien Enemies Act, 2012: section 21). This authority was used by the executive to detain British citizens during the War of 1812; Germans during World War I; and German, Italian, and Japanese ‘enemy aliens’ during World War II (Klein and Wittes, 2011: 102–106).

President Thomas Jefferson attempted unsuccessfully to suspend the writ of habeas corpus in 1807 (Klein and Wittes, 2011: 116–117), and President Abraham Lincoln did so during the Civil War, ordering the arrest and indefinite detention of those – including dissident newspaper editors and state legislators – he considered threats to public safety (Sandburg, 1954: 246–247; Speer, 1997: 37). While many, including Supreme Court Chief Justice Roger Taney, believed Lincoln’s actions to be unconstitutional, Congress retroactively approved them in 1863 (Klein and Wittes, 2011: 118–120; Ex parte Merryman [1861]). Tens of thousands of civilians in northern and border states were interned and many more banished without any specific showing of disloyalty. In one Missouri county, for example, by late 1863 only 600 people remained out of a population of 10,000 (Brownlie, 1958: 126, 163). Congress subsequently authorized suspension of the writ in 1871 to help suppress the Ku Klux Klan in the Reconstruction South, in 1902 to facilitate the colonial conquest of the Philippines, and in 1900 to preclude threats to the annexation of Hawai‘i (Klein and Wittes, 2011: 120–122).

During World War I, Congress passed the Espionage and Sedition Acts, which prohibited virtually all criticism of the government (Chang, 2002: 23; Espionage Act, 1917; Sedition Act, 1918; Unger, 1976: 41–42). More than a thousand people were convicted under these laws, and despite the fact that no one was convicted of espionage, more than 100 individuals were sentenced to prison terms of 10 years or more (Goldstein, 2001: 113; Linfield, 1990: 33–67). In 1919, Attorney General A. Mitchell Palmer conducted raids in 33 cities, arresting and holding 10,000 people, both citizens and noncitizens, as ‘criminal anarchists’ (Churchill and Vander Wall, 2002: 20–23; Unger, 1976: 43–44). During World War II, the US government engaged in the wholesale incarceration of approximately 120,000 persons of Japanese descent, on the grounds it was impossible to distinguish the ‘loyal’ from the ‘disloyal’ (Korematsu v. United States, 323 U.S. 214, 1944: 219; Daniels, 1972; Weglyn, 1976). Because two-thirds of those interned were US citizens, the program was authorized not by the Alien Enemies Act but by executive order (Executive Order No. 9066, 1942). Forced to abandon their homes, farms, and businesses, and to store or sell their possessions on a few days’ notice, men and women, children and the elderly, were shipped off to 10 concentration camps – euphemistically designated ‘relocation centers’ – in remote interior locations, where most were held for the duration of the war (Drinnon, 1987: 62; Weglyn, 1976). ⁵

In 1947, as the United States moved into the Cold War, President Harry S. Truman authorized the Justice Department to investigate the ‘infiltration of disloyal persons’ within the government and to create a list of ‘subversive’ organizations (Executive Order No. 9835, 1947; Weglyn, 1976: 32). The Internal Security Act of 1950 required all members of ‘Communist-front’ organizations to register with the government and authorized a proposal, not rescinded until 1971, to establish ‘emergency detention centers’ for incarcerating those so registered, without trial, any time the president chose to declare an ‘internal security emergency’ (Churchill and Vander Wall, 2002: 33; Matsuda, 1998: 9; Zinn, 1980: 423–424; Cole and Dempsey, 2002). Following the attacks of September 11, 2001, Congress passed the Authorization for Use of Military Force (AUMF), giving the executive broad authority to detain persons suspected of engaging in or supporting terrorism. In the following months, the Department of Justice detained several thousand Muslim or Arab immigrants, as well as those perceived to be of Middle Eastern origin, holding them indefinitely without charge, refusing to release information about who was being held, and often preventing the detainees from contacting their families, friends, or lawyers (Chang, 2002: 67–86). Since then almost 800 men and boys have been captured overseas and imprisoned at the Guantánamo Bay Naval base, where many still remain, and an unknown number of persons have been detained and tortured at an undisclosed number of ‘black sites’ around the world (Pether, 2012: 2562).

Nearly two decades after the ‘war on terror’ was declared, the US government’s power to detain people without legal or judicial safeguards continues unabated. The National Defense Authorization Act for 2012, signed into law by President Barack Obama, allows the indefinite military detention of those suspected of involvement in terrorist activity, without temporal or geographic limitations, and in terms that appear to apply to all persons, regardless of citizenship (National Defense Authorization Act for 2012, 2011: section 1021). The US government thus maintains large-scale, indefinite incarceration as an extrajudicial option for responding to threats to the national security – internal or external, real or imagined.

Despite the consistent and predictable use of such internments, they continue to be characterized as exceptional in the master narrative. It appears that most Americans prefer to believe that such measures are legitimate and extraordinary responses to actual or anticipated military threats, that peacetime is the norm to which the country will shortly return, and that, when it does, the rule of law will again prevail. Underlying these beliefs is a presumption that arbitrary detention can be readily distinguished from the state’s ‘normal’ practices. For the reasons discussed in the following sections, I believe that the indefinite detention of large sectors of the population under US jurisdiction has been and continues to be essential to the maintenance of American settler colonial rule.

Territorial Control: American Indian Internments

As theorists of settler colonialism emphasize, the ‘founding fathers’ of the United States were colonizers who came to stay, not simply to profit and return home (Wolfe, 1999: 2). These Anglo-American settlers brought with them a presumption of sovereign prerogative, an unshakeable belief in their right to establish a state over which they exercised absolute control (Veracini, 2010: 3, 53–54). This required a territorial foundation and that, in turn, meant ensuring the ‘disappearance’ of the Indigenous peoples of the land for, as Deborah Bird Rose aptly puts it, they ‘got in the way just by staying home’ (Rose, 1991: 46). It is well documented that the ‘settlement’ of North America involved the decimation of Indigenous nations through military massacres, privatized violence incentivized by scalp bounties and sensationalized disinformation, and the often-deliberate spreading of lethal diseases (Churchill, 1997; Stannard, 1992). But the significance of the systemic imprisonment of American Indians to the appropriation of the continent is often overlooked, as is the fact that the precedents established in the ‘Indian Wars’ continue to be relied upon by the US government in its so-called War on Terror (Fletcher and Vicaire, 2011; Yoo, 2003: 7). ⁶

Although the British and, subsequently, the United States had entered into numerous treaties with Indigenous nations, thereby acknowledging American Indian sovereignty in the process of legitimating colonial land claims, by the 1830s the US Supreme Court was proclaiming that American Indian nations would no longer be recognized as either independent or fully sovereign. As Chief Justice John Marshall announced in Cherokee Nation v. Georgia, ‘[t]hey may, more correctly, perhaps, be denominated domestic dependent nations’, nations that ‘occupy a territory to which we assert a title independent of their will’ (Cherokee Nation v. Georgia, 30 U.S., 1831: 17). This characterization of Indigenous peoples as internal colonies laid the groundwork for the federal government’s subsequent assertion of absolute – ‘plenary’ – power over Indian affairs (Churchill, 2002: 673–679; Newton, 1984). In other words, the unilateral extension of US jurisdiction to encompass – that is, forcibly include – Native peoples simultaneously resulted in their exclusion from all otherwise applicable legal protections.

It also laid the groundwork for the forced removal of the so-called Five Civilized Tribes (the Cherokee, Choctaw, Chickasaw, Creek, and Seminole nations) and some 30 smaller peoples from their homelands and their relocation to reservations west of the Mississippi River (Foreman, 1953; Jahoda, 1975). The nature of the process has been masked by the pervasive use of innocuous terms such as ‘relocation’, ‘removal’, and ‘reservations’, but the reality was that Indigenous peoples across the continent were reduced to the conditions of bare life Agamben describes as characterizing the concentration camp, a setting in ‘which human beings could be so completely deprived of their rights and prerogatives that no act committed against them could appear any longer as a crime’ (Agamben, 1998: 171).

For the Indian nations of the Southeast, ‘removal’ meant families taken at gunpoint from their homes (which were often then ransacked and burned), imprisoned in stockades, and then force-marched some 1200 miles across the country in mid-winter, with a resulting death rate of up to 50% (Thornton, 1984: 293). ⁷ These conditions were inflicted on civilians, by the US military, during a period in which no hostilities were occurring. The survivors who made it to ‘Indian country’ in Oklahoma were then assigned to ‘agencies’, that is, reservations. ‘Reserved lands’ sounds relatively benign but, as the following examples illustrate, the reservations to which some 400 American Indian nations were eventually consigned were, in fact, prison camps (Harring, 1994: 204–206).

In 1862, in the aftermath of what is known as Little Crow’s War in Minnesota, almost all of the Santee Sioux were interned at Fort Snelling, where conditions were so miserable that one-quarter of the population died within several months. In addition to the threat of military pursuit, escape was deterred by a US$200 scalp bounty proclaimed on all Santees found outside the fort (Brown, 1970: 60, 63–64; Schultz, 1992: 279–283). In 1863, following the army’s Kit Carson ‘campaign’, the Navajos were first imprisoned at Fort Defiance, Arizona, and then force-marched some 300 miles to the Bosque Redondo near Fort Sumner, New Mexico, where they were held for 4 years. Lodged in crude shelters (sometimes literally holes in the ground), provided grossly inadequate rations and wracked by disease, half of the detainees perished before they were moved to another reservation in 1868 (Bailey, 1988, 1998; Thompson, 1982). Thus trapped on inhospitable lands with inadequate food or shelter, survival seemed unlikely, prompting many interned peoples to try to escape. But they were prisoners, allowed to leave their assigned agencies only with the permission of the military or a federal Indian agent (Frederickson, 1981: 242–243).

The military was frequently deployed to track down and capture or kill those attempting to escape. In 1877, the Northern Cheyennes were relocated from their traditional Montana territory and imprisoned on the Cheyenne–Arapaho reservation in Oklahoma. As malaria, dysentery, and other illnesses spread rapidly among them, in the fall of 1878, some 300 Cheyennes fled in a desperate attempt to go home (Berthrong, 1976: 27–47; Sandoz, 1964: 27–31). Some 15,000 troops pursued the small group of escapees and incarcerated them at Camp Robinson, Nebraska, where they were denied food and firewood in the dead of winter in an attempt to coerce them to return to Oklahoma. In January 1879, the Cheyennes tried once more to escape but were quickly tracked down and about half of them, children included, were killed (Andrist, 1964: 321–329; Sandoz, 1964: 245–290). Similarly, the infamous Wounded Knee massacre of 1890 was perpetrated by troops pursuing Minneconjou Lakotas whose sole ‘offense’ was to have fled their assigned agency during a period of starvation and severe repression, to seek refuge among their Oglala relatives at the Pine Ridge Agency, about 150 miles away (Andrist, 1964: 350–352; Brown, 1970: 401–402; Sutton, 1985: 122–123; McGregor, 1940).

The message was clear: American Indians had no alternative but to stay in their assigned locations, under whatever conditions the government cared to impose. The explicit purpose of the policy was to ‘clear’ the land for White settlers and, by 1890, when the federal government declared the ‘frontier’ to be closed, those Indigenous peoples who had survived what David Stannard terms the ‘American holocaust’ were confined to less than 3% of their original land base (Churchill, 2003: 12; Stannard, 1992). As in all colonial ventures, the dynamic of difference had been employed to render them less than human – to construct them quite literally as bare life – as reflected in the fact that it was 1879 before the Ponca leader Standing Bear became the first American Indian legally recognized as a ‘person’ capable of suing for habeas corpus (Standing Bear v Crook, 1879; Dando-Collins, 2004).

Another 30 years passed before an American court ruled in 1909 that Indigenous people could not be classified – or treated – as ‘prisoners of war’ merely because they were Indians, a practice that persisted even after that time and has never been renounced by the government (United States v. By-a-lil-le [1909]; Harring, 1994: 198–203). The most egregious example is that of the Chiricahua Apaches. Harsh conditions at the San Carlos reservation had precipitated the escape and protracted military resistance mounted by Geronimo’s band during the 1870s and 1880s. In retaliation, after Geronimo’s surrender in 1886, the government shipped the entire Chiricahua population – children, elders, women, and even those men who had fought for the United States against their ‘renegade’ relatives – to military prisons in Florida and then Alabama. During their first 8 years of incarceration, some 40% of the imprisoned Chiricahuas died, and it was not until the winter of 1913–1914 that the survivors were finally transferred to the Kiowa–Comanche reservation in Oklahoma (Lieder and Page, 1997: 28–38; Roberts, 1984).

The purpose of incarcerating the Chiricahua Apaches for an entire generation was to ensure that their spirit was broken, to assimilate them to the ‘American’ way of life, with all that implies. Oversight of this project was entrusted to an army captain, Richard Henry Pratt, the Chiricahuas’ warden at the military prison in Florida. This, in turn, qualified Pratt to inaugurate the American Indian ‘boarding school’ system whose aim, as he stated in 1895, was to ‘kill the Indian, save the man’ in each student (Churchill, 2004: 13–14). These schools represent a massive program of indefinite detention. They operated for the better part of a century and, for generations children were forcibly removed from their families, often by the military. Parents who resisted were imprisoned. The children were very literally held captive, often for 10 years or longer, sexually abused, and tortured (Churchill, 2004). But sadism was not the purpose of their incarceration, as sadistic as their captors may have been. The purpose of the schools was to eliminate all vestiges of Indigenous culture in these children, to strip them of their identity and replace it with the settlers’ vision of what compliant people of color should look and act like.

In 1946, the US government established an Indian Claims Commission (ICC) in attempt to distinguish its record of territorial acquisition from that of the Germans it was then prosecuting at Nuremberg (Churchill, 2003: 125–152; Rosenthal, 1990). The following year, the Chiricahuas filed a claim for damages accruing from the expropriation of their lands and from their lengthy imprisonment in Florida and Alabama. In 1971, the ICC finally awarded them token payment for their lost lands but not for their imprisonment (Fort Sill Apache Tribe v. United States, 26 Ind. Cl. Comm. 281, 1971). On appeal, the Court of Claims held that while ‘the Apache Tribe did not prosper from the injuries suffered by its constituent members’ during their 27 years of imprisonment, these were claims over which the Commission had no jurisdiction (Fort Sill Apache Tribe of Oklahoma v United States, 477 F.2d 1360, 1365 (Ct. Cl. 1973), cert. denied, 416 U.S. 993 (1974); Lieder and Page, 1997: 222). By refusing to review this decision, the Supreme Court effectively legitimated the settler state’s prerogative to intern entire peoples in order to consolidate control over its claimed land base.

This prerogative has been exercised on numerous occasions, both within the claimed boundaries of the United States and in its colonial and imperial ventures across the globe. The Japanese American internment provides one internal example. While it was justified on the grounds of ‘military necessity’ (Korematsu v. United States, 323 U.S. 214, 1944: 233), upon closer examination it becomes evident that the removal of persons of Japanese descent from the West Coast, and their indefinite incarceration, was largely motivated by White settler resistance to their very presence. Despite reports from all relevant intelligence agencies that Japanese Americans posed no security threat, President Franklin D. Roosevelt ceded to pressure brought by organizations of prominent landowners and businessmen including, notably, the future Supreme Court Chief Justice Earl Warren (US Congress, Commission on Wartime Relocation and Internment of Civilians (CWRIC), 1982: 54–55). ⁸ One such group was the Native Sons of the Golden West, explicitly dedicated to preserving California ‘as it has always been and as God himself intended it shall always be – the White Man’s Paradise’ (CWRIC, 1982: 364n41; tenBroek et al., 1970: 32–57; Daniels, 1968: 85–87). As the California Joint Immigration Committee (formerly known as the Asiatic Exclusion League) stated bluntly in early February 1942, ‘This is our time to get things done that we have been trying to get done for a quarter of a century’ (tenBroek et al., 1970: 79).

California, of course, had not ‘always been…the White Man’s Paradise’. White settler claims had been realized only by the mass extermination of Indian nations (Churchill, 1997; Stannard, 1992) and the utilization and subsequent removal of Asian, particularly Chinese, and Mexican labor (Johnson, 2004: 661–667; Saito, 2003: 14–16). The Japanese American ‘evacuation’ and ‘relocation’ was entirely consistent with this history. Indian reservations served as ‘prototypes’ for the camps in which Japanese Americans were interned (Drinnon, 1987: xxiv, 265) and Poston, one of the ten major Japanese American concentration camps, was actually located on the Colorado River Indian reservation in Arizona and administered by John Collier, the Commissioner of Indian Affairs (Byrd, 2011: 185).

Poston’s history illustrated the integral – and distinctly colonial – relationship between the American Indian and Japanese American internments. In 1940, Collier had proposed to ‘colonize 10,000 American Indians to the [Colorado River] reservation’ (Byrd, 2011: 185), and Japanese American prisoners were utilized to develop the irrigation system Collier believed would allow the reservation to be self-sustaining. As Jodi Byrd observes:

By naming the relocation centers and internment camps ‘colonies’ within their internal documents, the United States revealed the deeper logics of removals and reservations, and Collier, who saw in Poston an opportunity to develop a social experiment that might innovate future management strategies within the Office of Indian Affairs, had already laid the groundwork so that Hopi and Navajo families might join those relocation colonies after the war ended to continue the work started by the Japanese American internees. (Byrd, 2011: 187)

In turn, the reconcentrado policy used in the Philippines to ‘facilitate counter-insurgency operations’ (Schirmer and Shalom, 1999: xiv, 15, 299) was replicated by the Americans in Vietnam. By 1963, a reported 8.7 million peasants in the Republic of Vietnam (South Vietnam) had been forcibly concentrated in ‘strategic hamlets’ where, according to the Pentagon Papers, ‘it was difficult to differentiate between security for the rural populace and control of that populace, since many of the actions to achieve one were almost identical to the acts to realize the other’ (Shafer, 1988: 267). After US ground troops were introduced in 1965, the process was accelerated, with millions more driven from US-declared ‘free fire zones’ in the countryside and ‘reconcentrated’ by what was termed ‘forced draft urbanization’ (Chomsky and Herman, 1979: 65–66; Sheehan, 1988: 106–107, 540–542). Since then, similar tactics have been and continue to be used by US-backed regimes in Central America to drive Indigenous peoples off their lands resulting, among other things, in large-scale migrations to the United States (Taylor and Steinberg, 2011: 254–257; Coutin 2011).

Enslaved and Incarcerated Labor

As Euro-American colonizers successfully employed strategies of elimination and containment to occupy Indigenous lands, they recognized that they would need a large and subordinated labor force to render the appropriated – and depopulated – territory profitable (Wolfe, 1999: 1–2). Initially, much of this labor came from enslaved persons, primarily of African descent. After ‘emancipation’, criminalization supplanted chattel slavery as a means of maintaining an imprisoned labor force. In turn, as labor needs shifted and Afrodescendant peoples came to be seen as a ‘surplus’ population, mass incarceration has served as a means of controlling and conceptually disappearing large sectors of the population.

Immigrant Detention

The previous sections have briefly addressed ways in which the settlers who believe the United States to be ‘their’ country have routinely imposed regimes of indefinite detention upon American Indians, Afrodescendants, and other peoples of color in order to obtain Indigenous lands and to profit from the lands and peoples they have colonized. A discussion of such ‘routine’ internments would be incomplete, however, without mention of the indefinite detention of peoples cast as unwelcome or disposable migrants, for ‘[n]o preventive detention regime in US law sees more use or affects as many people as does the immigration detention system’ (Klein and Wittes, 2011: 141).

Thus far I have argued that indefinite detentions in the US have, in large measure, been a necessary concomitant to the settler colonists’ appropriation of Indigenous lands, their utilization of enslaved labor to ‘develop’ and profit from those lands, and their desire to contain and control sectors of the population they perceive as superfluous to the well-being of ‘their’ state. From this perspective, the exclusion of Indigenous and Afrodescendant peoples through various forms of incarceration is integrally related to their histories of having been involuntarily included in the course of American colonial expansion. Immigrants are generally understood to be voluntary migrants and, therefore, it might appear that their exclusion from the United States, either through internment or deportation, is unrelated to the forced inclusions that inevitably characterize colonial ventures.

In fact, however, immigration-based detentions can be seen as integrally related to American settler colonialism. An assumed right to control who may, must, or may not enter the territory, and who may or must leave it, is a foundational precept of the sovereign prerogative claimed by colonial founders of the state (Veracini, 2010: 16–17). As the Supreme Court candidly stated in its 1901 decision in Downes v. Bidwell, where it refused to extend constitutional protections to the residents of external colonies such as Puerto Rico, ‘[t]he power to acquire territory…implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be’ (Downes v. Bidwell, 182 U.S. 244, 1901: 279). Despite the master narrative’s rhetorical insistence that this is a ‘nation of immigrants’ (White House, Office of Communications, 2013) – a framing that serves primarily to erase Indigenous sovereignty – it has always been more accurately described, as it was by the so-called Native Sons of the Golden West, as ‘the White Man’s Paradise’ (CWRIC, 1982: 364, n. 41). In attempting to create and maintain this ‘paradise’, immigration policies have played a critical role.

Mae Ngai has documented in detail how global migration is not simply ‘a unidirectional phenomenon, in which the hapless poor of the world clamor at the gates of…wealthier nations’ and, more particularly, how American immigration history is ‘the product of specific economic, colonial, political, military, and/or ideological ties between the United States and other countries’ (Ngai, 2004: 11, 10). Given the United States’ remarkably successful campaign to depict this as a ‘land of opportunity’ for all, many undoubtedly came voluntarily, believing – accurately or not – in their ability to share in the benefits accrued by the largely Euroderivative settler class (Lockwood, 2013). Many others, however, have migrated under very different circumstances, from Chinese laborers literally kidnapped and forced to migrate (Redman, 2010: 2–5) to Filipinos, Puerto Ricans and Pacific Islanders driven from their homelands by US colonial occupation and its economic consequences (Andres, 2009: 530–531; Román and Simmons, 2002: 488–519; Torruella, 2013: 82–87); to Central American refugees, themselves Indigenous peoples, forced off their lands by US-backed military governments (Romig, 1985: 317–18); to those, like Mexican subsistence farmers, no longer able to feed their families as a result of global economic agreements (Belanger, 2006: 2–3, 13–16); to refugees generated by US wars, from Southeast Asia to Iraq, Afghanistan, and Syria (Chow, 2005: 106–111; Hedges, 2013).

In many of these cases, governmental policies have facilitated the importation of labor when the otherwise available workforce was inadequate to settler territorial or economic expansion, and then excluded these workers during periods of economic downturn (López, 2012). In other instances, such as the influx of refugees generated by US wars, the diversification of the population seems less intentional, accepted, often grudgingly, as the collateral damage of the policies and actions perceived as necessary to achieve or maintain global hegemony (Scott, 2014).

Despite the wide range of motivations impelling migrations to the United States, certain commonalities, or patterns, can be seen in terms of the subordination of migrants, particularly migrants of color, in the interest of maintaining colonial relations. One of these is the government’s consistent use of a virtually unfettered prerogative to detain immigrants. This section provides a few illustrative examples of this process.

During the mid-19th century, Chinese workers were heavily – and often involuntarily – recruited to the United States to serve as a readily contained and presumptively disposable pool of low-wage labor essential to the agricultural and industrial development of the West (Galenson, 1984: 15; Takaki, 1989: 79–88). Within a few decades, however, the Chinese were increasingly depicted as a ‘yellow peril’ intent on displacing White workers and Congress responded to the mounting calls for exclusion by passing the first federal immigration laws since the prohibition of the slave trade. A series of Chinese Exclusion Acts was passed in the 1880s, prohibiting the entry of Chinese workers, precluding the reentry of Chinese residents who left the country, and creating a presumption of illegal presence that could be rebutted only with a certificate of residence (‘a kind of internal passport’) attested to by White witnesses (Daniels, 2004: 17–22). Equally egregiously, during the Depression of the 1930s, when their labor was no longer desired, about one-third of the population of Mexican origin – both citizen and noncitizen – was summarily rounded up and deported (Johnson, 2004: 661–667).

In the Chinese Exclusion Cases, the Supreme Court first articulated the plenary power doctrine referenced above with respect to the federal government’s assertion of absolute authority, unconstrained by otherwise applicable constitutional protections, over American Indian nations and external colonies. Deferring to the political branches of government – that is, Congress and the Executive – the Court authorized exclusion based solely upon race or national origin (Chae Chan Ping v. United States, 130 U.S. 581, 1889: 606) and refused to characterize deportation as punishment (Fong Yue Ting v. United States, 149 U.S. 698, 1893: 730–734). Subsequently, the Court exempted detention pending deportation from otherwise applicable constitutional constraints (Rodriguez-Fernandez v. Wilkerson, 654 F.2d, 10th Cir. 1981: 1385). Since then, indefinite detention pending deportation or, more recently, adjudication of asylum claims, has been standard practice, limited only by Supreme Court rulings in 2001 and 2005 that in the absence of a ‘significant likelihood of removal’ persons deemed deportable or inadmissible could not be held for more than 6 months without administrative review (Zadvydas v. Davis, 533 U.S. 678, 2001: 701; Clark v. Martinez, 543 U.S. 371, 2005; Moore, 2013). Even this limitation has recently been called into question (Jennings v. Rodriguez, 138 S.Ct. 830, 2018).

During the Cold War, these immigration powers were utilized to indefinitely detain noncitizens whom the government wished to deport but had nowhere to go. Thus, for example, the Court allowed Ignatz Mezei, a permanent resident who had gone to Europe to visit his ailing mother, to be held indefinitely on Ellis Island, without a hearing, on the attorney general’s assertion that his reentry would be ‘prejudicial to the public interest’ (Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 1953: 208). During the 1980s, these precedents were invoked to allow the indefinite detention of Mariel Cubans (Fernandez-Roque v Smith (11th Cir. 1984); Garcia-Mir v Meese (11th Cir. 1986); Boswell, 1997: 702; Taylor, 1995). ¹⁶ The injustice inherent to such practices was articulated by the Tenth Circuit Court of Appeals in the Rodriguez-Fernandez case when it ordered the release of a Mariel Cuban who was excludable but had nowhere else to go:

The case law generally recognizes almost absolute power in Congress concerning immigration matters, holding that aliens in petitioner’s position cannot invoke the Constitution to avoid exclusion and that detention pending deportation is only a continuation of exclusion rather than ‘punishment’ in the constitutional sense…[Yet, in] the instant case the detention is imprisonment under conditions as severe as we apply to our worst criminals. It is prolonged; perhaps it is permanent. (Rodriguez-Fernandez v. Wilkerson, 654 F.2d 1382, 10th Cir. 1981: 1385)

In the meantime, the United States had interdicted and detained or repatriated tens of thousands of Haitian asylum seekers, holding those detainees it found to have credible asylum claims at its naval base at Guantánamo Bay, Cuba (Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993); Paik, 2016: 91–99; Frelick, 1993). Ultimately, some 12,500 Haitians were interned at Guantánamo before the United States began forcibly returning Haitians intercepted on the high seas and, eventually, invading Haiti in 1994 to restore ‘stability’ to the region and avert ‘the threat of a mass exodus of refugees’ (Paik, 2016: 99). Arguing that Guantánamo was not under US sovereign control, US officials repudiated any legal responsibility regarding the detainees’ basic human rights, setting the stage for its current use of the naval base (Paik, 2016: 95–96). The Haitians were held in overcrowded, unsanitary conditions that they were told could last for decades, forced to live ‘a life of animals, of beasts’, in the words of one detainee (Paik, 2016: 105).

In 1993, as migration from Central America increased largely as a result of the wars being waged by US-backed military governments in the region, the Supreme Court allowed the immigration service to detain over 1000 unaccompanied children each year, often in adult facilities, rather than releasing them to noncustodial family members or guardians (Reno v. Flores, 507 U.S. 292, 1993). Mandatory detention was imposed on asylum seekers and most deportable migrants in 1996 (Antiterrorism and Effective Death Penalty Act, 1996; Illegal Immigration and Immigrant Responsibility Act, 1996), and in 2003, asylum and immigration control was transferred to the newly formed Department of Homeland Security. Since 2009, the immigration authorities have consistently filled a congressionally mandated quota of at least 34,000 beds for detainees (Torrey, 2015). During fiscal year 2014, the United States held some 425,000 persons – more than twice the federal prison population – in immigration detention, primarily in private prisons or local jails. While most are held for a matter of weeks, many others remain incarcerated for years (Karaim, 2015). In 2001, the US government opened its first family detention center and in 2014, it dramatically expanded the use of family detention with the stated purpose of deterring undocumented migration (Preston, 2014; Hatoum, 2015). This policy may change following a July 2016 ruling by the Ninth Circuit Court of Appeals that a 1997 settlement agreement prohibiting the detention of unaccompanied children applies to children accompanied by their parents – but not to the parents – but only as a result of political pressure, not legal constraint (Flores v. Lynch, 9th Cir., July 6, 2016).

The 2001 USA PATRIOT Act included broad provisions for the indefinite detention of noncitizens, including permanent residents, reasonably believed to be involved in terrorism or subversion, subject only to the attorney general’s review and renewal every 6 months (8 U.S.C. § 1226a(a)(1)–(7) (2001)). As Klein and Wittes note, however, this provision has never been used because ‘[t]he other immigration detention authorities are themselves so robust that it apparently has not been necessary’ (Klein and Wittes, 2011: 143). In the Rodriguez-Fernandez case, the appellate court noted that ‘no principle of international law is more fundamental than the concept that human beings should be free from arbitrary imprisonment’ and argued that some constitutional constraints must apply, for ‘[s]urely Congress could not order the killing of Rodriguez-Fernandez and others in his status on the ground that Cuba would not take them back and this country does not want them’ (Rodriguez-Fernandez v. Wilkerson, 654 F.2d 1382: 1388, 1387). It is not clear, however, that this is true. Thus, for example, the US government has justified the rendition of noncitizens from the United States to Syria and other unknown locations, with the intent to subject them to intense interrogation and severe torture, by arguing that anyone presenting a foreign passport at a port of entry, even if only changing planes, can be considered to be ‘seeking admission’ into the United States, and that anyone deemed ‘inadmissible’, even wrongly or illegally, remains ‘outside’ the United States and, therefore, outside the protections of the Constitution (Bernstein, 2005; Fitzpatrick, 2003).

Concluding Thoughts

Indefinite detention is often described – and contested – as a form of exclusion from society having spatial, biological, conceptual, and legal dimensions. Denied the protections penal law purports to provide, detainees are forcibly confined, subjected to physical and mental torture, and rendered socially invisible. Exclusion, however, implies a border between inside and outside; it can exist only in relation to inclusion. Similarly, exceptions arise only in relation to rules. Thus contextualized, Agamben defines the ‘relation of exception’ as ‘the extreme form of relation by which something is included solely through its exclusion’ (Agamben, 1998: 18). His characterization of ‘the exception [as] an inclusive exclusion’ (Agamben, 1998: 21) provides a useful starting point for understanding indefinite detentions in settler colonial contexts, for colonization is a process of forcible inclusion that must be realized for there to be anyone or anything to exclude. ¹⁷

To the extent the inclusion of peoples perpetually rendered ‘different’ has been integral to US colonization and imperial expansion, the concomitant exclusions, or internments, must be seen as normative rather than exceptional. The United States would not have the land base that allows for its physical existence and its wealth without the forced removal of American Indians from their traditional lands and their militarily enforced confinement to reservations or boarding schools. The involuntary labor relied upon by the settlers to render these lands profitable cannot be divorced from the concentration camps of chattel slavery or their subsequent evolution into the world’s largest prison system. The disposable labor force on which the settlers still depend has been constructed and controlled by mass internments and an immigration system that has long relied upon indefinite detention. Most recently, it appears that the arbitrary and dehumanizing incarceration of people who are, or are perceived to be, Arab, Muslim and/or of Middle Eastern origin is integral to the United States’ maintenance of global hegemony (Saito, 2001).

Most of the peoples of color interned by the United States have been in a position to be excluded by virtue of having first been involuntarily included in the American settler colonial project. As a result, the exclusion represented by the indefinite detentions to which they have been subjected cannot adequately be understood – much less redressed – without simultaneously addressing the underlying inclusions, that is, the appropriation of lands, resources, and human bodies in the interest of colonial expansion. More recent migrants and refugees may be perceived as voluntarily requesting inclusion, but in many instances their migrations can be seen as proximately caused by the United States’ exercise of its military and economic power on a global scale. These and many other racialized detentions – each a conscious project of the settler state – are characterized by the twinned dimensions of inclusion and exclusion that reflect the internal logic of colonialism as well as its more practical aims.

To the extent the dynamic of exclusion cannot be separated, in theory or practice, from that of involuntary (i.e., colonial or imperial) inclusion, the resulting injustices are not exceptional but organic to the state’s assertion of its sovereign prerogative (Wolfe, 1999: 204–210). This helps explain the consistency with which the United States has utilized indefinite detentions throughout its history, while also suggesting that such practices cannot be effectively prevented or redressed within a paradigm of law, constitutional or otherwise, that rests upon colonial foundations. Throughout American history, the settler state has exercised its claimed prerogative to indefinitely detain individuals or entire peoples in what it claims to be the national interest. With equal consistency, this power has been ratified by the Supreme Court, often in the name of judicial deference to the plenary authority of the political branches of government.

In the seminal Downes v. Bidwell decision referenced above, Justice Henry Billings Brown acknowledged that such ‘an unrestrained possession of power’ could lead to concerns about despotism. He assured, us, however, that we need not worry, for ‘[t]here are certain principles of natural justice inherent in the Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect’ (Downes v. Bidwell, 182 U.S. 244, 1901: 280). In support of this explicitly racialized proposition, he quoted the following statement from Chief Justice John Marshall’s opinion in Johnson v. McIntosh, the 1823 case that deemed American Indians incapable of owning their own lands:

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. (Downes v. Bidwell, 182 U.S. 244, 1901: 281; quoting Johnson v. McIntosh, 21 U.S. 543, 1823: 589)