I told you so?
In which I struggle to understand how to describe the ongoing constitutional crisis in the context of longstanding atrocities and contemplate the value of liberal hypocrisy.
Events have overtaken this post. When I first began drafting it, the legal wrangling over the fate of 238 Venezuelans kidnapped by ICE and flown to a mega-prison in El Salvador, Cecot (Translation of full name: “Terrorism Confinement Center”), was still in the district court of Judge Boasberg. Trump invoked the Alien Enemies Act to justify these process-less deportations (claiming the U.S. was under “invasion” by members of Tren de Aragua, a Venezuelan gang), and the specific point of conflict from which a constitutional crisis might spiral was whether Judge Boasberg would find executive branch officials in contempt for proceeding to deport those individuals despite an order forbidding them from doing so under the Alien Enemies Act. Technically speaking, that option is still available to Judge Boasberg – violating a then-valid court order is contempt even if the order is later overturned on appeal. But the moral and political force of such an order has been deflated by the Supreme Court, which has since dissolved the injunction, finding habeas petitions are the only means by which those 238 men can challenge their torturous confinement. Instead, the constitutional crisis has crystallized around Trump’s refusal to retrieve Kilmar Abrego Garcia from Cecot; Abrego Garcia being a Maryland man who had been living lawfully in the United States pursuant to a withholding of removal order and thus, as DOJ lawyers admitted, had been wrongfully deported.
But the other 237 men also remain in Cecot, unable to challenge the “alien enemy” designation on which Trump relied in transporting them there. While the SCOTUS decision (J.G.G. v. Trump) dissolving the injunction with respect to these men nominally provided some means of availing the Article III courts to escape their Kafkaesque condition (recall that Gitmo detainees’ access to the writ of habeas corpus at all was the great victory for the rule of law five years after 9/11, in Boumediene v. Bush), the practical effect of SCOTUS’s decision with respect to the remaining individuals is to facilitate future deportations. To challenge their transportation to Cecot under the auspices of the Alien Enemies Act, deportees must bring habeas petitions in the district in which they are confined – which means the Department of Homeland Security can select the judge who will hear that petition by moving the detainee who might file it.
And move detainees they have, generally from the coastal cities in which they were abducted to large-scale detention centers in Texas, Louisiana, and Arizona. To cite another high profile example: the fate of Mahmoud Khali (the recent Columbia graduate and activist with a pregnant citizen wife rapidly approaching her due date) currently depends on whether a New Jersey judge will order ICE to return him to a facility in that state (where he was taken initially), or leave him in Jena, Louisiana. If he challenges his deportation order in Louisiana, his case must climb through district courts where Democrats’ refusal to eschew blue slips have left courts with generational rightward slants and where appeals funnel through the Fifth Circuit, which is so extreme even SCOTUS has rebuffed its efforts at eliminating Congressionally-authorized agencies and effectively banning mifepristone.
All of which is to say: In the month since I began fumbling around with how to understand the Cecot kidnapping in relation to cases of Khalil and Ozturk, the confinements that are part of the “normal” liberal order, and the Gitmo renditions and immigrant disappearances of the War on Terror (out of which DHS itself was created), the crisis has deepend and transmuted. Now the threat of authoritarianism as such, whether the Supreme Court will act as a check on executive branch violence (or contort itself to maintain the myth of its authority while never actually exercising it, as it appears John Roberts has committed to doing), the extent of the administration’s ambitions to deport immigrants en masse, threats to “deport” “homegrown” individuals, and the fate of Kilmar Abrego Garcia, have all taken front stage. How the 238 men were selected for deportation has become a secondary atrocity.
We’ve reached the “president openly flouts SCOTUS decisions” and “international students are carrying habeas petitions everywhere they go on campus” stage of whatever this is. Which means it feels a bit odd to write about a not-so-distant time in which the water was only simmering.
Six months ago, during the brief optimistic period when we thought Kamala might save us, I wrote a post, couched as a review of Serial’s fourth season, arguing that “we” learned all the wrong lessons from Guantanamo. Read as a representative text of the mainstream liberal “take” on Gitmo two decades on, Serial Season 4 suggested the detention and torture of hundreds of men in CIA blacksites and Guantanamo had been metabolized in our national political consciousness as trauma response, a horrible wrong, but an aberration. Instead, I argued, “our” horror at how men ended up in Gitmo and what they suffered there should have precipitated a confrontation with the ways in which “ordinary” criminal punishment and immigration enforcement both enact colonial logics under which limitless violence is permitted.
It is easy to draw a line from what Trump is doing now to what Bush II did twenty years ago. ICE itself, a force authorized to use violence for the sole purpose of maintaining the exclusion of certain individuals from the U.S.’s physical and political borders, and the entity now smashing car windows to snatch individuals waiting for asylum interviews - was a product of the War on Terror. Before Immigration and Customs Enforcement, we had the Immigration and Naturalization Service. This post is a revisiting, of sorts, of the themes and questions of that Guantanamo essay and an invitation to struggle with the paradox of this kind of critique in this new era of unabashed autocracy: How do those of us who persistently called attention to liberal hypocrisy around racialized violence think and talk about the ways in which things are very obviously worse now? To put the question another way: Now that we have lost it, should left critics of the post-Civil Rights Act constitutional order admit a mistake and fight to reclaim it, blame it as the thing that got us into this mess and refuse to glorify it as the basis for anti-Trump opposition, or…what? (Spoiler alert: I don’t have an answer.)
These questions struck me particularly hard around March 17, when the Department of Justice filed a brief that was supposed to explain, or justify, its apparent defiance of Judge Boasberg’s order prohibiting ICE from relying on Trump’s Alien Enemies Act declaration as a basis for deporting individuals from Venezuela. (Deporting on other grounds? Still OK.) The Department of Justice, rather than address the questions posed by the court, challenged Judge Boasberg’s authority to question the timing of the departure of the rendition flights and thus whether the executive branch had defied the judicial branch’s order, and made a number of remarkable claims, which were, at the time, the subject of considerable outrage. But one phrase in that brief caught my attention: “terrorists and criminals.”1 As in: the president’s “authorities under the Constitution to engage in diplomatic negotiations and to protect the United States from dangerous terrorists and criminals already outside the country.”
As someone who tracks the use of the language of political exclusion in U.S. discourse pretty closely, this formulation struck me as new, and significant. To be a terrorist in U.S. political discourse has, for more than twenty years, been sufficient to render one’s life forfeit. How many bombings (and “collateral damage”) have been justified with little more than the assertion that the targets were “terrorists” or “high-ranking terrorists” within ISIS or Al Qaeda? “Terrorism” is a basis for exclusion from entry, for deportation, for surveillance. When a mass shooting occurs, whether the deaths were the product of “a terrorist attack” or just an ordinary killing, is usually the first thing officials attempt to discern and disseminate. (It is also true that “terrorism” has become code for “committed by a brown-skinned Muslim.”) But “terrorists and criminals” implies that terrorists were not the only category of persons subject to this process-free violence; “criminals” (a category that, seemingly by definition, refers to some kind of process to determine whether an individual committed a criminal act) might be too. I was unnerved.
So I decided to test my hypothesis that “terrorists and criminals” was a novel formulation in U.S. political and legal discourse. And yes, Google search results for the phrase largely support this supposition. The first several pages of hits include scholarly and think-tank-y articles from the UN, European policy centers, the National War College, and various academics examining the financial and other linkages between organized crime and terrorism and statements from crypto opponents (including Senator Warren) about how Bitcoin, et al. are used by “terrorists and criminals” to pursue their respective goals. To be sure, the phrase is still used to describe a broad group of bad people, but generally the primary object of concern is a different policy, technology, or tool that (it is claimed) both groups can use for nefarious ends; or the article takes as a its premise the distinction between these two groups and attempts to determine the extent to which the practice of organized crime is imbricated with political violence or the extent to which individuals engaged in criminal activity are brought into terrorist networks.
There are, admittedly, some pre-Trump II usages as well, although tellingly most relate to border crossings, either statements by Republicans criticizing the Biden administration’s border policy, or by Biden to rebuff these criticisms (albeit as part of a triumvirate: “drug cartels, terrorists, and criminals”), or by DHS under Biden (“In recent years, terrorists and criminals have increasingly adopted new techniques and advanced tactics in an effort to circumvent homeland security…” on a page last updated: May 30, 2023).
Past legal usage is also sparse. The most common use of the phrase in judicial decisions produced through a Westlaw search is as part of a quotation from a Supreme Court decision that juxtaposes “terrorists and criminals,” on the one hand, and “ordinary visa violators” on the other, to conclude that because the relevant statute authorizing post-removal detention encompasses both, the government must release immigrants from such detention after a certain point if they cannot be deported. Other uses include the characterization of the federal supermax in Colorado as housing “the most dangerous terrorists and criminals”; a reference to a congressional statement about money laundering provisions in the Patriot Act; a dissenting reference to “leaving our borders open to electronically savvy terrorists and criminals”; and a conservative judges’ dissent expressing concern that the majority’s opinion will hamper DHS’s ability to “captur[e] known terrorists and criminals in foreign locales.”
So let’s say my initial reaction was at least partially correct: Sure, the use of the phrase “terrorists and criminals” in U.S. political and legal rhetoric is not entirely new and – importantly – has previously been used primarily in reference to immigration or border crossing. But it has not been routinely used in public-facing rhetoric or judicial decisions and, most significantly, has not previously been used as a load-bearing political category with respect to executive authority. That is, “terrorists and criminals” is not a designation that gives rise to a corresponding category of legal authorization or state violence. The closest, I think, that political actors have come to using the phrase in this way is in those conservative judicial dissents, wherein the dissenters suggest that finding rights or limits in statutory language might allow “terrorists and criminals” not only to evade capture or enter the U.S., but have too easy a time of things in prison.
My research, in other words, did nothing to assuage my pit-in-the-stomach dread at reading the phrase. By conflating these categories (criminal, terrorist) – one of which has, for the past twenty years, been the object of due-process-free deadly violence - the Trump regime seemingly radically expanded the class of persons subject to such violence. Within the Trump DOJ formulation, “terrorists” are no longer (as they were under Bush II and during the War on Terror) juxtaposed against criminals as a particularly dangerous class of persons requiring especially extreme treatment, but part of a unitary category with criminals. The President’s inherent “authorities” vis-a-vis external actors are not just limited to political opponents, which could be construed to include “terrorists,” who are defined by the political motives of their violence as well as its magnitude, but criminals as well. In other words: If “criminals” and “terrorists” are part of the same category, what’s to stop Trump from leveraging the twenty years of legal and political and sociological infrastructure enabling the execution and exclusion of terrorists once so-designated, and the arrogated authority to make that designation with little outside check, against criminals as well? And since criminals are also citizens (and terrorists, even if technically citizens, are not identified as members of the polity), and since the Trump regime is already invoking thought crimes to deport immigrants (who do not enjoy, at least in Anglo-American mythos, the kind of central-to-our-political-identity due process guarantees associated with criminal convictions), how are far are we really from a traffic citation operating as a one-way ticket to a Central American gulag?
(In fact we’re already there; student visa-holders who have been stripped of their status for such citations without notice who fail to self-deport, like the occasional Canadian tourist, may end up not on a flight back to their “home” country but in an indefinite period of deportation detention.)
Those who know me personally (which, let’s be honest, is most of the readership of this blog) and have made it this far are no doubt rolling their eyes. But Megan, they/you say, wasn’t the central argument of your dissertation that the distinction between “pirate” (the early modern terrorist!) and “criminal” has never been that clear and in fact the origins of the legal category of “criminal” lie in the international legal category of “piracy,” and in fact early social contract theorists drew from the rhetoric and reasoning around piracy’s susceptibility to annihilating violence to justify the sovereign power of punishment that is constitutive of the (theoretical) early English state? Are you renouncing your historical argument, or your core criticism of U.S. penal logic? Confronting the mortality of the political order in which you were born and raised, have you found (gasp!) liberalism?
Well, not exactly. Because in selecting these 238 men, the Trump administration adopted longstanding techniques of prison management in good ol’ blue California. At least some – maybe most, given more recent reporting finding the vast majority of the kidnapped men had no criminal records – of the kidnapped Venezuelan men were selected for CECOT on the basis of tattoos purportedly associated with Tren de Aragua. Anecdotally, such tattoos have been cited as the basis by which other men were selected for rendition (Andry Hernandez Romero, most prominently, who is seemingly uniformly described as a “gay makeup artist.”2) But also systematically: Documents produced in the J.G.G. litigation include a metric for “validating an alien as a member of” Tren de Aragua that assigns 4 points for “tattoos denoting membership/loyalty to TDA,” and another 4 for displaying “insignia, logos, notations, drawings, or dress known to indicate allegiance to TDA.” Eight points is enough for “validation.”
The California Department of Corrections also designates inmates as members of Security Threat Group (i.e. gang) on the basis of a points system. Such designation was, for decades, the most common basis for placing inmates in indefinite solitary confinement in California’s supermaximum security prison, Pelican Bay. Unlike the points system that sent Hernandez Romero and Abrego Garcia to Cecot, the California point system is enshrined in (administrative) law. In California’s system, 10 points is enough for validation. Tattoos are worth six points. For comparison: Self-admission is worth only five points. In 2015, the California Department of Corrections reached a settlement that required CDCR to individually reassess prisoners in solitary and use behavior-based validation going forward. At the time of the settlement, there were more than five hundred individuals who had been held in solitary confinement for ten or more years on the basis of “validations” where tattoos could be the most significant evidence of any affiliation. Thus, while Trump’s flouting of judicial authority, specifically, is new, the fact that one can be placed in horrifying conditions of confinement on the basis of specious evidence and lack any legal remedy for demonstrating one doesn’t belong there on the nominal criteria offered to justify one’s placement, is decidedly not.
Public outrage around the kidnapping of the 238 Venezuelan men has focused on the role of tattoos. I think this reflects an intuitive sense that relying on tattoos, which are often ambiguous in their symbolism, deeply personal, and crucially permanent, is particularly pernicious, and suggests a desire for class-based exclusion rather than self-defense. A tattoo is not evidence of anything you’ve done to anyone else. And a tattoo is permanent (they can be removed, but it is expensive and painful) – it is, at most, evidence of something you once felt, once believed, once identified with, that you may or may not feel or believe or associate. Yes, a person has to do something to get a tattoo, but once done, it becomes a status. One need only consider the Kafkaesque challenge confronting supermax prisoners attempting to demonstrate their ability to re-enter genpop by showing they were no longer affiliated with a gang when the evidence of such membership is literally inscribed on their skin. (Hence the three ways out: parole, snitch, or die.) Grants Pass decision notwithstanding there is a long tradition and strong intuition among left-of-center USians that one’s status should never be a justification for punishment.
It also should not go unmentioned, while discussing tattoos, that Defense Secretary Pete Hegseth was prohibited from attending the Biden 2021 inauguration because he has a “Deus Vult” (“God wills it”) tattoo on his arm. (Reality, it turns out, is a rich text.) The Deus Vult tattoo is associated with Christian white nationalism (the phrase purportedly has origins in the First Crusade) and is used by the Proud Boys and Three Percenters. Hegseth is not actually running ICE, but his appointment, and confirmation, were very obviously a test case and expression of Trump’s power over the Republican Party and newly brazen politics of open misogyny and rule-as-rape. Cops, too, use tattoos as gang identifiers.
What are we to make of Hegseth’s ability to evade the significance of his tattoo and the fact that Andry Hernandez Romero may die because of his? There is a persistent conservative tendency toward projection-as-politics. One of the odder subplots of the Cecot saga is that Trump’s bizarre social media post claiming Biden’s pardons were invalid because Biden allegedly signed them using autopen was almost immediately followed by his attempted disavowal of the Alien Enemies Act order on the ground that he, Trump, did not actually sign it. The reliance on tattoos to select the men for kidnapping may reflect a projection of ICE officers’ relationships to their own tattoos, their assumptions about affiliation and willingness to engage in violence borne of their own body art choices. And/or, the very hypocrisy or selectivity of applying one interpretive rule with respect to Hegseth’s tattoos and another to Venezuelan migrants is itself the political gesture: “For my friends, everything; for my enemies, the law.”3 Impunity for that for which others are punished is a feature (maybe the feature), not a bug, of fascist and white supremacist regimes. (Let’s count how many times sexual violence is cited as a basis for the Cecot renditions…) Or maybe it is even simpler than that: Tattoos are not disqualifying for Hegseth because those who confirmed him do not actually disavow what the tattoos stand for. A white nationalist tattoo is no more disqualifying than a mom-heart-with-arrow because there is nothing wrong with the former. And tattoos are death sentences for Venezuelan teenagers imply because it makes the jobs of their kidnappers easier; it is easy to grab someone off the street and then find a tattoo.
Ah, you say, but what about that grabbing. Isn’t the horror of what is happening to Andry and Kilmar, and the basis for their legal challenge, a lack of process? And weren’t the men placed in California supermaxes convicted of crimes? Crimes, yes, but the difference between gen pop and solitary – like the difference between deportation to your country of origin and rendition to Cecot – was categorically not the result of an inmate’s crime of conviction. No constitutional process was recognized as due until 2005, when the Supreme Court held that inmates must be afforded “due process” before being moved from “gen pop” into supermax conditions. It would be another decade before the Ashker settlement that compelled California to reform its validation process.
Nevertheless, one might say, well, that’s the difference – it is the fact that the Alien Enemies Act enables deportations without hearings that makes the kidnapping of those 238 men a Constitutional crisis and the decade(s)-long imprisonment of the 500 men in California not. But such a claim credits a hearing with 48 hours notice where the identity of one’s accusers may be obscured to protect an informant and one lacks legal representation and cannot appeal the decision to any court outside of the prison system - i.e. the process afforded prisoners in the Ohio prisons out of which the SCOTUS case arose – as “due process.” Moreover, adopting the position that due process makes the difference between business-as-usual under Biden and the Trump constitutional crisis also suggests that the deportations of hundreds of thousands of people not to notorious prisons but to places where they face a credible threat of retributive violence following hearings where they lacked representation involved “due” process. And yes, that includes about half of children facing deportation.
But still, I want to insist, I genuinely believe, things are so, so much worse now. But why? And how?
But first, the “I told you so.” I believe those who who focused on the plight of the “worst of the worst” – supermax prisoners who had done horrible things – and who, in particular, criticized prison systems for their reliance on tattoos to decide who belonged in those places were absolutely right to hone in on this mechanism as a threat not just to the individual men (the all torture is wrong argument against solitary), but as a kind of skeleton key for the problem of state violence in our liberal society writ large. Judith Butler (and others; I really cannot recommend In Bed With the Right enough) have argued that the repression and obsessive hatred of trans people among conservative and centrist reactionaries in the U.S. and Europe is a kind of synecdoche or pivot or crux of the rising authoritarian (and concomitant gender extremist) movements behind Trump, Orban, Le Pen, and Meloni. Defending trans people from attack, rather than bargaining with a putative right populism by “compromising” on “the trans issue,” as some center- and left- elites have attempted to, is therefore critical to defeating such movements. That is (summarizing others) because their attempts at repression and elimination of transness contain the full logic of their ultimate goals of both gender hierarchy and autocratic authority. Similarly, allowing the use of tattoos as a signifier of membership and justification for violence (or, indeed, allowing the use of supermax prisons at all) unlocks or leaves available political authorization for violence that does not admit any intrinsic limits within the logic of liberalism, leaving liberalism toothless in both theory and practice as a bulwark against the expansion of this violence.
But if prison advocates and activists were right, if my dissertation was right, and the threat of unlimited violence by an arbitrary executive was always constitutive of punishment in the U.S. (and in England before the U.S. founding), if indelible characteristics rather than actions can be the basis of intense isolation or even torture even under the “liberal” regimes of Democrat-controlled U.S. states, then what is new, and terrifying, about what Trump is trying to do with these Venezuelan men? Because, again, I really do think it is new. Is that instinct wrong? Is it simply a matter of new categories of people not perceived by the general public as deserving of such brutal treatment becoming subject to it? (Adam Serwer, for example, generally quite a perspicacious critic of U.S. racial politics from a left perspective, made much of the “innocence” of the 238 men, to some criticism.4)
Any time deservedness becomes a politically meaningful category, the discourse becomes much more intelligible if one substitutes “likely to apply to me through events out of my control” for “innocent.” That is to say: Yes, immigrants are more sympathetic than convicted criminals to the modal USian, but the operative distinction may be how likely it is people believe they will be convicted of a crime serious enough to warrant a prison sentence versus how likely they believe the category creep will extend beyond Venezuelan men between the ages of 18 and 40 to themselves or people they know. Is what’s unnerving about this “terrorists and criminals” formulation that, when read alongside Trump’s other rhetoric and actions, signals that folks like me who largely understood themselves exempt from the violence of the criminal justice system but who are outspoken critics of the Trump regime are now much likelier to become targets of this violence?5
During the salad days of Obama and Biden, many on the left (myself included) relished calling out liberal hypocrisy. And critics of ICE and DHS and CDCR under Obama and Biden and Jerry Brown and Gavin Newsom were right. We were right! Leaving the logic of tattoo-based-gang affiliations intact, like leaving the statutory authorizations for Secretary of State deportation designations unrescinded or Guantanamo open and staffed, constitutes a kind of failure to clear land mines. Lives are now being blown up by the legal and moral equivalent of unexploded ordinances planted by Democratic elected officials. Calls to abolish ICE were mocked or disparaged, but had ICE been disbanded, Trump (or, more realistically, Stephen Miller) could not threaten the kind of mass deportations that have effectively ended the education of foreign students in the U.S., if only through deterrence, for the foreseeable future.
But targeting such hypocritical violence as hypocrisy carries its own dangers. Samuel Moyn’s intellectual trajectory is an object lesson in this. A scholar of twentieth century human rights discourse, Moyn was consistently critical of the War on Terror under Obama, and Biden and of the ways in which Democrats defended and extended U.S. empire. During Trump I and the Biden interregnum Moyn expressed skepticism of and disdain for #resistance liberalism, for the glorification of courts as a bulwark against authoritarianism, and a belief (widely shared among left intellectuals and DSA organizers, among others) that Trumpism could only be defeated through economic populism and electoral victory. Any attempt to disqualify Trump through the courts (either directly by excluding Trump from running for reelection under the Fourteenth Amendment or indirectly through criminal conviction) was doomed to fail or backfire. But this argument went beyond a strategic disagreement as to how to beat Trump and became a debate about whether Trump represented a break in U.S. politics at all, or one which we should fear. Moyn - like Corey Robin and John Ganz, both scholars of conservatism - insisted that Trump did not present a radically new threat. Either earlier conservatives were already quite terrible, or the center-left-liberal order was not all that great either, but in any case, Trumpism was a break in political dynamics or a novel fascist threat, but a continuation of trends and ideological commitments long present in U.S. mainstream politics. Moyn even went further, suggesting that Trump’s rejection of international liberalism could be sanguinary.
Corey Robin has since disavowed this position. In a mea culpa interview with NPR’s On the Media he acknowledged he was wrong: Whatever Trump I was, Trump II is unequivocally fascist, and presented a new extremist vision of U.S. political order that must be confronted as such. Moyn, on the other hand, persists in - if not minimizing the rupture in the domestic constitutional and international orders - implicitly downplaying their moral significance. I want to be very clear that I am not accusing Moyn of Trumpism, nor do I think he is at all sympathetic to Trump’s racism, sexism, or xenophobia (or anything else Trump has actually done, really). As an anonymous political scientist put it on Bluesky: Moyn, having spent decades pointing to liberal hypocrisy as a means of vindicating underlying substantive values (human freedom, equality, etc.), eventually came to see hypocrisy itself as the evil, rather than the harm that hypocrisy authorized. The effect of this minimization of Trump’s danger, and of his focus on the sins of liberalism rather than the threat of fascism, is to produce complacency or cynicism. To be sure, the real-world impact of such theorizing is likely to be minimal; I seriously doubt anyone is not attending a protest seeking the return of those 238 men because Obama extrajudicially executed Anwar Al-Awlaki. Moyn, in particular, does not seem to have fallen into some contrarian trap where he refuses to act collectively to stop Trump’s abuses - he is acting as if Trump is a threat.
But just as the November 2024 election results dispelled some of my naive economic left-populism, the events of the past month have made me reconsider the value of hypocrisy. Could it be that the superficiality of the fig leaf reveals, paradoxically, its ideological significance? That the practical emptiness of due process afforded the men in Pelican Bay does not make the promise of due process empty but in fact reveals the importance of claiming that these men have received due process to the ideological project of U.S. liberalism? Why else would so many - courts, politicians, reporters - insist on the importance of something so materially meaningless to the people who suffer the violence it putatively justifies? I am decidedly not suggesting a Hamilton-esque story about national aspirations falling short. I am not saying we should all be liberals because of its aspirational values. I am arguing the opposite: That dehumanization was always part of the legitimating narratives of political violence, that dehumanization is not a failure of liberalism but constitutive of its logic of citizenship or political membership. (I will, perhaps, admit that appealing to those aspirations has worked as a vehicle and a form through which collective force has been brought to bear to bring about positive change in the conditions of disfavored groups over U.S. history just as, in general, civil rights law has. But that these victories took the form of judicial decisions does not mean they were won this way.6)
Until very recently, those who could be subject to state violence collectively had sufficient political power as to require the fig leaf, to insist upon the aspiration and to assuage their own fears of political subjection. We could tolerate supermaxes if we were told the men inside had received due process; whether they actually had was less important than the legal requirement to provide it, because that promise signaled a reassurance that no, we won’t come for the rest of you. Liberal hypocrisy was itself a confession of constraint not from the law, but of the brute reality of political possibility. Each time the criminal conviction process was invoked, it operated as a reassurance against the practical possibility of deployment of that violence against most people. Americans would continue to hedge their bets.
If so, the annihilation of always-blurry distinctions between terrorist and criminal in government briefing does not constitute, but signifies, a belief by those wielding the violence that they no longer need our cooperation to carry it out. I hope they’re wrong, but we’re going to find out very soon.
A digression on language, since I hear this phrase, “terrorists and criminals” in Trump’s voice, although he obviously did not write the brief in question. One thing I have noticed about Trump II versus Trump I that I haven’t seen remarked upon, and which is a pretty dire sign of where things are headed (if everything else happening weren’t more than enough) is the degree to which every government publication now reads as if Trump himself wrote it. Consider, for example, the announcement in June 2019 that the first Trump administration was eliminating the Obama Clean Power Plan. As a policy, this rulemaking was terrible (and the final rule found arbitrary and capricious by the DC Circuit), but the press release sounds like standard EPA jargon: Claims about improving the environment, use of private entities and the Supreme Court as sock puppets for criticism of the Obama plan, an anodyne quote from the agency administrator. It reads like it was written by a career employee in the EPA press office.
Contrast the March 12 announcement of across-the-board rollbacks at the EPA. The policy changes are much broader and ambitious, of course, but the text itself is also strikingly different. It’s the “greatest day of deregulation our nation has ever seen,” the “greatest and most consequential day of deregulation in U.S. history,” references to “unleash[ing] America’s energy,” and the grammatically incorrect use of scare quotes (“taxes”). There are short, declarative sentences that speak in absolutes. There’s a video.
I do not think Trump is more involved in the drafting of major press releases now than he was in 2019, which means either career press staff have begun adopting Trump’s writing style in their own work, or they have been replaced by apparatchiks selected no doubt for their willingness to make all government press releases sound like Trump wrote them. In either case, the degree of agency capture is greater than it was the first time around. But beyond that, the particular manifestation of this capture, namely, the adoption of Trump’s style for day-to-day publications, is a separate and ominous change: It reinforces, subconsciously, the identification of the state with Trump himself. Government press releases are supposed to sound as if they were written by no one. Trump is catastrophic on environmental issues but has not, historically, used environmental rulemaking or the lack thereof to push the boundaries of his authority. If even agency actors outside of those policy areas not closely identified with Trump priorities are speaking about what the government does as if they were Trump posting on social media, well, that’s a tyranny tell. (I use “tyranny” deliberately, by the way, because while I think those around Trump are fascist, Trump himself continues to strike me as a tyrant in the early modern sense, particularly in the degree to which the presidency has openly become a vehicle for his personal enrichment. But that really is another essay.)
Somebody with a background in gender theory please write about this, it feels as if it’s absolutely begging for analysis by someone who knows what they’re talking about.
A phrase attributed to both Brazilian President Getulio Vargas and Peru’s General Óscar Benavides.
One might also ask why – if the violations alleged are of universal human rights – “innocence” should matter at all.
And here is another uneasy question for the left-critics of the prior regime: The LAPD’s recent shooting of Jillian Lauren in her own backyard, like the killing of Justine Damond, a forty-year-old Australian-American woman who had called the police who shot her, reveals that even all the privileges of white womanhood cannot outweigh police’s belief in their own impunity. It is, on the one hand, grossly offensive to suggest that I - a white, middle-aged, well-to-do woman suffer vulnerability to police violence on a day-to-day basis. But on the other hand, it is a blow against solidarity and simply wrong to understand this relative safety as absolute or categorical. It is whiteness as a category, not individual white people, that U.S. policing protects; understanding oneself as both the beneficiary of this and capable of renouncing this benefit by, e.g., engaging in protest is crucial, I think, to becoming what some activists call a “collaborator” rather than an “ally.” Recognizing that your whiteness will not protect you, as a person, is also clarifying as to the extent of the violence latent in U.S. policing and can become the psychological basis from which people are radicalize and organize or speak out against that violence.
“Injunction or riot” doesn’t have the same ring as “the ballot or the bullet,” but one need not be a radical to recognize the former in the civil rights victories of the 1960s.