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Rupture and Continuity: Evaluating Immigration and 9/11 - Robert H. McLaughlin

To evaluate the impact of the terrorist attacks of September 11, 2001 and their relationship to immigration in the United States requires the selection and use of appropriate historiographic concepts. In this paper, I use the concepts of rupture and continuity to suggest a layering of concurrent of histories and politics of 9/11. My purpose is to connect these histories and politics to questions about governance and to offer an understanding useful to immigration discourse and its policy debates.
Journalists, politicians, and scholars agree: the phrase "Post 9/11" ushers in a new historical period. Associated with a heightened concern for domestic security paired to an increased fear of terrorist acts occurring in seemingly arbitrary places and times, any local politics can be made global politics in the Post 9/11 era. As airplanes tore through the towers of the World Trade Center in New York City, we felt a profound rupture in time, place, and history, and we witnessed it over and over again on television news reports and documentaries, and in our newspapers and periodical magazines and journals.
Soon the alien identities of the terrorist-hijackers finally proved what the identities of other terrorists of the 1990s at Oklahoma City, in Atlanta, Georgia, and at Columbine, Colorado had failed to show before, that the work of immigration is the work of national security. Robust legislation termed the USA PATRIOT Act would honor the rupture of September 11, 2001 as legislators called for even more massive reforms including the reorganization of immigration authorities within a newly founded Department of Homeland Security. A nationwide investigation of the 9/11 attacks further involved interviews with roughly 1,200 persons, 700 of whom were detained on immigration charges. Litigation brought under the Freedom of Information Act by the Center for National Security Studies and various civil liberties groups revealed that as of June 2003, 74 remained in detention. Many had already been deported. A second group of 134 persons was detained for federal criminal charges; 99 were found guilty through pleas or by trial. The total number of a third category of detained persons who had been placed in custody on the basis of material witness warrants, however, remained undisclosed; sealed orders prohibited the government from releasing any information about these proceedings. Together, and beyond the immediate and tragic losses of life from the attacks themselves, the sweeping post-9/11 legislation and the prolonged length and broad scale of the 9/11 investigation evidence rupture in our times.
And yet, as the investigation continues and as more and more immigration reforms take shape, a broad continuity appears between the periods before and after September 11, 2001. As NSEERS anticipates US-VISIT —a system expected to eventually track the entry and exit of all foreign travelers to the United States—it recalls alien registration and the filing of "specimen forms" in the early 1940s. As Arab and Muslim immigrants submit to annual re-registration in immigration offices around the country, rituals of immigrant monitoring are renewed. At a more general level, fees for immigration benefits rise as incrementally and periodically as before. For naturalization, for example, the Department of Homeland Security has proposed to raise the application fee by $60 as of October 1, 2004 to a cost of $320. Previous increases in 1998 and 2002 raised the fee from $95 to $225, and from $225 to $260. The additional $50 fee for fingerprints and a criminal background check brings the current total cost to $310. And as agencies continue to link together powerful databases filled with biometrics and "hits" of criminality officials promise ever-better immigration inspections and benefits decisions. These patterns reveal a basic continuity that pertains to the gathering and maintenance of detailed biographical and biometric information, what historian and social theorist Michel Foucault calls the techniques of disciplining the body.
In the United States, immigration authorities have long used these techniques to target and identify travelers, immigrants, and aliens. Their charge to control the corporeal bodies of aliens participates in the governance of the body politic as a whole. The governance of immigration began, of course, with the exclusion of the sick and the poor. In the early decades of the republic, before the federal government took control over immigration, the individual states passed laws to prevent the immigration of the indigent. In Massachusetts, for example and as Law Professor Gerald Neuman documents in his book Strangers to the Constitution, such an individual could be removed or resettled under law, "by land or water, to any other State, or to any place beyond sea, where he belongs." Even criminals were denied entry, shiploads of them like a shipload of British convicts purported to be ordinary indentured servants that arrived in Baltimore in 1784, was refused permission to enter, and ended up in British Honduras. But as the individuality of an ordinary person has become increasingly observed over the past century and a half, documented in detail, and tracked day-to-day, purchase to purchase, across internet sites, video rentals, books borrowed and e-mails sent and received, excludable groups have largely diffused into specific inadmissible persons.
Examination, argues Foucault, "surrounded by all its documentary techniques, makes each individual a case: a case which at one and the same time constitutes an object for a branch of knowledge and a hold for a branch of power." No longer a set of circumstances concerning an act that may implicate the application or adaptation of a legal rule, the case is an individual who, in Foucault's terms may be "described, judged, measured, compared with others." According to contemporary practices of immigration in the United States, he may be inspected through IBIS , biometrically scanned with IDENT , admitted (perhaps with the swipe of a security entry visa), excluded, removed and deported, or detained.
Interestingly, the kinds of data that immigration authorities seek and record today are basically the same as those that have been in use for decades. The racial categories associated with documenting criminality or performing background checks offer a clear example. These categories became so naturalized in the early to mid-20th century that the national registration of all aliens under the Alien Registration Act of 1940, called for the use of a "Specimen Form" or "Green Sheet" that included racial categories alongside two other "check-one-box" questions about sex and marital status. Immigrants—classed as alien specimens—were thus compelled to disclose their sex, height, weight, eye color, and hair color, and to name a racial category by placing a check mark in one of the small squares printed to the right of each choice: White, Negro, Japanese, Chinese, and Other. Selecting "Other" would require a different category to named and written on a blank line. The purpose of registration and completing the Specimen Form was, wrote INS Director of Registration, Earl G. Harrison, "so that the United States could determine exactly how many aliens there are, who they are, and where they are." Registration, including fingerprints, promised Harrison's instructions, would not be harmful to law-abiding aliens. Failure to register, however, was punishable with a fine of $1000 and imprisonment for six months. The aims of Alien Registration resonate with the goals of contemporary immigration policy.
The current standard fingerprinting form in use at Application Support Centers and where officials scan fingerprints for immigration benefits applications similarly instructs immigrants to place a check mark after one of a series of racial categories. The categories include American Indian or Alaskan Native, Black, White (Hispanic also check), Asian or Pacific Island, and Unknown. The form also, of course, calls for sex, height, weight, eye color, and hair color. And while racial categories did not appear on the N-400 naturalization application form in use during the 1990s, they have returned in the most recent version released in May 2001, appearing in a section titled, "Information for Criminal Records Search," as required by the FBI. Race thus remains a category of identification imbued with presumptions of biological or "natural" content deemed relevant to the issue of criminality and the task of disciplining the immigrant body. An alien, especially an "Other" who may now also be regarded as an "Unknown," remains a specimen and an individual case that (not who) falls into the continuities of immigration.
Like other immigration benefits application forms, the current N-400 application form for naturalized citizenship is not, however, entirely without signs of the rupture of 9/11. Despite being released several months prior the attacks of September 11, 2001, the form introduces a poignant revision to a question of good moral character. The question asks: "Have you EVER been a member of or in any way associated (either directly or indirectly) with: … a terrorist organization?" The term "terrorist" joins such terms as "anarchist," and "communist" to inform and shape the legal meaning of "good moral character" as the longstanding, basic criterion for admission to citizenship.
A paradox of rupture and continuity in immigration thus follows from 9/11. Again, consider Foucault. In the introduction to another work, The Archaeology of Knowledge, Foucault describes history as layers of meaning and explains an inherent interdependence between rupture and continuity as historiographic concepts, each throwing the other into chronological relief. His theory of history offers a way to reconcile the concurrent rupture and continuity of 9/11, and to accommodate different, critical perspectives. A critical perspective fixed on rupture, for example, leads to a specific series of questions about immigration, many taken up productively in the form of civil rights litigation. Under what circumstances should the removal proceedings of immigration courts be closed to the press and public? How is the public to be assured that detained aliens facing removal proceedings are afforded adequate legal representation? What constitutes due process of law for an individual whom the President designates an "enemy combatant" of the United States and who may be held in a military brig. A perspective fixed on continuity of immigration before and after 9/11, however, might ask deeper, broader questions. What levels of official examination, inspection, and surveillance are appropriate to democratic governance? What levels are tolerable? And what levels might constitute a total "system of discipline" that threatens civil liberties and punishes individuality?
A symbolic parallel to this type of layered historical analysis appears in the sites of the terrorist attacks themselves. These sites recall another Foucauldian idea, the core notion of the "archaeology of knowledge." "In our time," writes Foucault:
[H]istory is that which transforms documents into monuments. In that area where, in the past, history deciphered the traces left by men, it now deploys a mass of elements that have to be grouped, made relevant, placed in relation to one another to form totalities. There was time when archaeology, as a discipline devoted to silent monuments, inert traces, objects without context, and things left by the past, aspired to the condition of history, and attained meaning only through the restitution of a historical discourse; it might be said … that in our time history aspires to the condition of archaeology, to the intrinsic description of the monument.

At the World Trade Center, recent plans for a memorial entitled, "Reflecting Absence," call for an anti-monument in the square footprints of the former towers, a type of memorial architecture that will imitate the preservation of an archaeological site. The sound of falling water will silence the surrounding city to which the towers were once integral nodes of commerce and urban transportation. The emptiness above the square footprints will inspire human imaginations to conjure the histories lived in and ruptured in that place. Yet, much as this emptiness suggests, it documents nothing.
By contrast, construction crews at the Pentagon have already, and quickly, restored the façade destroyed by the impact of the third hijacked airplane. Though scarred and marked as such for history, the primary lines and architectural features of this façade bear an unmistakable continuity with those of each of the other sides of the edifice. Work has resumed, and it remains the work of national security and defense, and of war.
Which of the two sites will come to embody the enduring and prevailing politics of 9/11? Or will it be that third site in rural Pennsylvania? Which will seem the most salient at different, analogous moments in the future? These questions invoke historical perspective, theory, and critical choice. Such objects of historiography may, of course, shift and change. Foucault himself concludes the introduction to The Archaeology of Knowledge by explaining that he writes, in part, to lose himself. "Do not ask who I am and do not ask me to remain the same: leave it to bureaucrats and our police to see that our papers are in order. … [S]pare us their morality." A foreign traveler, immigrant, or alien might feel a similar desire to lose herself as she is channeled through the labyrinth of a port of entry under the inspection and surveillance of contemporary immigration authorities. Perhaps a citizen may feel it too.