The rule of lawless

The United States immigrant detention system has been called a gulag. The California state prison system has been called a golden gulag. Millions of women, children, men inhabit severely overcrowded, ferociously under-resourced, rigorously unmonitored and opaque `centers’. This gulag has been likened to sites of bare life where national sovereignty is articulated by the power and capacity to kill and to reduce life to physical survival, and less. These descriptions are accurate, but they miss something. It turns out that the U.S. immigration detention system is just the most recent articulation of the rule of lawless.

The rule of lawless haunts the rule of law. In fact, when the rule of law looks in the mirror, it’s the lawless it sees, and then quickly names as dangerous other. This became clear this past week, when the Obama administration announced its intention to overhaul the immigrant detention system.

National Public Radio reported, “The Obama administration is planning to overhaul the nation’s immigrant detention system.” According to The New York Times, “The Obama administration intends to announce an ambitious plan on Thursday to overhaul the much-criticized way the nation detains immigration violators, trying to transform it from a patchwork of jail and prison cells to what its new chief called a `truly civil detention system.’” The Austin American-Statesman called it a larger and then, the next day, a broader “overhaul of the nation’s immigration detention system”.

Everyone cried overhaul. Overhaul, to change significantly, abruptly, swiftly, with force or violence.

The first site of this supposed overhaul is the T. Don Hutto Residential Center, in Taylor, Texas, a notorious private prison, run by the Corrections Corporation of America, and just down the road from Austin.

Hutto came to public attention over the past few years for its abysmal treatment of children and women. The ACLU, the Women’s Refugee Commission and others weighed in and waged mighty campaigns. Now, children will no longer be sent to Hutto. In fact, `families’ will no longer be sent to Hutto. They’re going to the Berks Family Shelter Care Facility, in Leesport, Pennsylvania.

But Hutto will stay open, as an all-women’s immigration detention center. Michelle Chen, of RaceWire, wrote a terrific piece, “New Direction for Detention?”, that explains in great detail what Hutto means for women, what immigrant detention has meant for women. It’s been terrible, and there’s no reason to think it will improve.

At the same time, and here’s where the rule of lawless kicks in, many think the only way to overhaul the system would be to actually overhaul the system. NPR reporter Michelle Brand interviewed NPR reporter Daniel Zwerdling on the overhaul. Zwerdling reminded Brand that immigrant detainees are “civil detainees”. They are charged with having broken civil, or administrative, laws, “like overstaying a visa”, but are housed with “regular criminals”, and so are treated accordingly: beaten, overcrowded. Many die for lack of medical care. Treated like prisoners in the U.S. system. Ask California, under order to release 43,000 prisoners. The difference is that the immigrants are, again, civil. As Zwerdling explained, “government officials have told me that 90 percent of the immigrants they detain never have a lawyer. So they can’t really even challenge their own detention.”

Why don’t they have lawyers? Because constitutionally, they don’t exist.

“Zwerdling: ` lawyers say the best way to make sure the jails treat immigrants humanely is to pass a law that requires it. Period.’

Brand: ` So, wait, there’s no law that says treat detainees humanely?’

Zwerdling: ` No, absolutely not. The detention standards are legally just guidelines, you know, so nobody can actually force the government and the jails to obey them.

And now some members of Congress have introduced bills that would turn those standards into law. And I asked the Homeland Security spokesman today, will you support that? And he said, no. And I said, why? And he did not give me an answer.’”

That, in a nutshell, is the rule of law. If no law says your category must be treated humanely, you have no legal, juridical protection. Period. And you will not get an answer from members of State about that. More accurately, radical silence shall be your answer.

According to Michelle Brané, Director of the Detention and Asylum program at the Women’s Refugee Commission, when it comes to immigrants, “Our current laws are unforgiving and unrealistic.” Yes, but our current system of non-laws is lethal.

This legal system is one of negation. Everywhere, this negation, this system of absence-of-law, this reliance on written law as the only means of preventing abuse and atrocity, as the only means of `protection’, this is the rule of lawless. The rule of lawless haunts the rule of law, and it targets women. Don’t send women to Hutto. Shut it down.

(Image Credit: WomensRefugeeCommission.org)

About Dan Moshenberg

Dan Moshenberg is an organizer educator who has worked with various social movements in the United States and South Africa. Find him on Twitter at @danwibg.