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 the concurrent 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. At that time, June 2003, however, the total number of a third category of detained persons who had been placed in custody on the basis of material witness warrants 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 continued 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.
The Structure of Immigration
In the United States, immigration authorities have long used techniques of disciplining bodies 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.
The governance of immigration proves considerably more complicated than many Americans realize. And yet, despite the extensive reforms of the PATRIOT Act and related federal legislation enacted since 2001, the basic structure of the Immigration and Nationality Act remains the primary source of law governing immigration in the United States. Enacted in 1952, Congress has subsequently amended the Act with more than fifty significant pieces of immigration legislation. Among its various attributes, the Act assigns a growing number of responsibilities to federal agencies. In recent years, the predominate agencies responsible for the administration of the Act included the Department of Justice, the Department of State, the Department of Labor, the Public Health Service, and the Department of the Treasury. The newly established Department of Homeland Security joins the list with the Immigration and Naturalization Service (INS) drawn out of the Department of Justice, combined in part with other agencies, and reorganized into three new agencies in the spring of 2003. These agencies are the Bureau of Citizenship and Immigration Services (BCIS), the Bureau of Customs and Border Protection (CBP), and the Bureau of Customs and Immigration Enforcement (ICE).
Most responsibilities under the Immigration and Nationality Act are now assigned to the three newly established agencies within the Department of Homeland Security. The responsibilities of the former Immigration and Naturalization Service (INS) to provide immigration benefits services under the supervision of the Attorney General and a commissioner appointed by the President have been transferred to the Bureau of Citizenship and Immigration Services (BCIS). Among its various other functions, this agency reviews applications for naturalization and makes recommendations that immigrants be admitted to the citizenship of the United States. This agency also serves to adjudicate employer petitions for immigrant workers, eligibility for various waivers of deportability and excludability, and eligibility for various types of re-entry documentation. In addition, the BCIS determines eligibility for refugee status and political asylum. In all these functions, immigration officials use the criteria of the Immigration and Nationality Act and its regulations, and the broad discretion afforded to them by law in their evaluation of applicants for immigration benefits. Headquartered in Washington, DC, the presence of the BCIS extends throughout the United States and to overseas offices located in dozens of countries around the world. Within the United States, it further comprises seven regional offices and service centers, nine asylum offices, approximately seventy district offices and sub-district level offices, and many local application support centers and other facilities.
Immigration involves more than the allocation of benefits, however, and for this reason, the Immigration and Nationality Act explicates other functions as well. Formerly, for example, the Customs Service of the Department of the Treasury cooperated with the INS at ports of entry and the Border Patrol along national borders to regulate the passage of goods and people between the United States and other countries. These functions now belong primarily to the Bureau of Customs and Border Protection. Officials of this agency serve to inspect travelers, citizens and aliens both, to grant or deny them and the articles they may carry admission to the United States, and to oversee the presence of aliens within the country. Internally, the principal enforcement responsibilities of the investigation, arrest, and removal of deportable aliens formerly assigned to the INS now belong to the Bureau of Immigration and Customs Enforcement (ICE). This agency is also charged with imposing employer sanctions for the hiring of unauthorized alien workers.
In general, however, the enforcement of federal laws falls within the purview of the Attorney General and the Department of Justice. For this reason, the reorganization of the INS (an agency within the Department of Justice) into three separate agencies within the Department of Homeland Security represents an historic change. Despite recent reforms, however, both Attorney General and the Department of Justice retain certain responsibilities under immigration and nationality laws. These responsibilities include an interpretive role with respect to the enforcement of immigration laws, especially where discrepancies may arise between new and existing government agencies, and continued supervision of the Executive Office for Immigration Review (EOIR), commonly known as the Immigration Court. EOIR primarily adjudicates deportation and removal cases. It also has jurisdiction over some determinations made initially by the immigration authorities.
Like the Attorney General and Department of Justice, the Secretary of State and Department of State have traditionally held important roles in immigration. The transfer of considerable authority over visa policy and procedures to the Department of Homeland Security represents another historic change in immigration law. However, the Secretary of State and the Bureau of Consular Affairs will continue to participate in visa policy through collaboration with the Director of the Department of Homeland Security to establish procedures for the issuance of both immigrant and non-immigrant visas at consular offices. As of late 2003, the existing Foreign Affairs Manual remained in effect and incremental changes to its instructions and guidelines will be cleared and authorized by the Department of Homeland Security pursuant to a memorandum of understanding with the Department of State. Most aliens who come to the United States on only a temporary basis to visit, study, or work, will continue to apply for and obtain a non-immigrant visa from a United States consulate or embassy abroad. They will experience the changes of authority mostly in terms of extended application processing times and more extensive security measures. Consular offices are located around the globe, from Tijuana and Ciudad Juarez, to Manila and Accra. Their officials also serve to determine the foreign nationality of persons located abroad, just as State Department officials verify the nationality of applicants for United States passports. Visa Security Officers of the Department of Homeland Security are now taking posts at consular offices to directly review visa approvals.
Back in the United States, and in addition to the Departments of Homeland Security, Justice, and State, the Department of Labor has several responsibilities with respect to immigration. The Department of Labor must certify those sectors of the economy for which qualified workers are unavailable in the United States and for which the employment of an alien will not adversely affect the wages and working conditions of similarly employed citizens of the United States. Therefore, the Department of Labor administers the procedures by which an employer who seeks to hire an alien employee must conduct domestic recruitment campaigns and establish prevailing wage data. The Department of Labor administers similar programs for temporary, "specialty occupation" workers and for temporary workers who can be admitted only if unemployed persons capable of doing the work cannot be found in the United States. The Department of Labor also polices a general bar on longshoreman's work among foreign crews, and cooperates with immigration authorities in enforcing employer compliance with the record-keeping requirements of alien eligibility for employment.
The federal Public Health Service represents yet another key agency involved with immigration. The Public Health Service is charged with inspecting aliens on entry to the United States and providing medical certificates to aliens excluded for health reasons. In consultation with immigration officials, the Public Health Service defines the "communicable diseases of public health significance" for which the Service issues such certificates. The Service further consults with immigration officials regarding waivers of excludability for aliens who may otherwise be excluded for medical reasons. It has found the following medical conditions to be dangerous contagious diseases and grounds for inadmissibility to the United States: chancroid; gonorrhea; granuloma inguinal; infectious leprosy; lymphogranuloma venereum; infectious-stage syphilis; active tuberculosis; and human immunodeficiency virus (HIV) infection.
In short, this brief account of the primary agencies that administer the Immigration and Nationality Act indicates that immigration pertains to several aspects and structures of governance, even in an era in which national security dominates the legislative agenda. These aspects include state interests in the lawful conduct of people, in national security and diplomacy both, in the maintenance of labor market stability and productivity, and in public health and social welfare.
Disciplining Alien Bodies
"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 be 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 thus resonate with the goals of contemporary immigration policy.
The current standard fingerprinting form in use at Application Support Centers where officials scan fingerprints for certain 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: â€¦ 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 has 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 â€¦ 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 faÃ§ade 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 faÃ§ade 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. â€¦ [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.