Exclusion, Jurisdictional Space, and Enactments of Sovereignty: An Interview with Jeffrey Kahn

In “Geographies of Discretion and the Jurisdictional Imagination,” anthropologist Jeffrey Kahn [JK] examines spatial infrastructure that lends jurisdiction its power.  In the article, Professor Kahn argues for a spatiotemporal understanding of law and sovereignty. More specifically, the article posits that jurisdictional spatial registers, in this instance those related to asylum seeker rights, are undergirded by complex architectures, which transform how different institutions convey and engage with the law in different historical moments. Recently, Digital Editorial Fellow Helena Zeweri had the chance to ask some follow-up questions about the article, the transcript of which we provide here.


HZ: Particularly illuminating in the article is how it points to the mundane, technical, and procedural work of sovereignty. It supports your call via Richland (2013) to understand sovereignty as “an active undertaking.” How do you see the strategies of the lawyers as informing or perhaps reforming how sovereignty itself works? Going back to an example from the article, can the lawyers’ strategies to reroute the review of Marie Pierre’s case through administrative tribunals and federal judiciaries be read as making one element of sovereignty’s power—the determination of inclusion in the polity—less diffuse and more concentrated?

JK: Well, to begin, I think part of the value of a jurisdictional perspective is that it allows one to examine the types of authority that look very sovereign-like within liberal constitutional regimes but don’t fit the bill of de jure sovereign power, because, formally speaking, they aren’t the last word on a given issue. This is always the challenge of applying a Schmittian perspective, for example, to a political form that Schmitt himself argued does its best to distort and confound the true nature of sovereignty by refracting it through an institutional landscape of separated powers and engineered deliberation. Where exactly does that power to decide on the exception reside in such a political arrangement? With the modern liberal state, it always rests with “the people,” an answer that is ethnographically dissatisfying and largely fictional despite its formal accuracy. Jurisdiction allows one to get into the weeds and examine how that diffusion that Schmitt often castigated actually operates. It is a partial turn away from the metaphysics that haunted so much of his, and, later, Agamben’s political philosophy.

But, to get to your specific question, certainly the outcome of the lawsuits I describe in the article and all the political work that surrounded them resulted in a reformatting of sovereign power in the sense that there was a shift in the jurisdictional configurations determining where the authority to decide fundamental questions (like who is permitted to remain within the territory) resided. Some might call it a minimal reformatting in that it never altered where ultimate sovereignty could have manifested itself—with “the people,” that is, through elections and, more directly, extraordinary forms of law making.

What is clear, however, is that these jurisdictional transformations nonetheless reworked an existing spatial vision of the polity, and that’s really one of the main points I was trying to get at in the article. I am fascinated by the ways the lineaments of this taken-for-granted entity, the state, which is also meant to provide the political infrastructure for this imagined community, the nation, can contort and bend as cases like these work their way through the courts. While attention to the felicitous speech, to borrow Austin’s term, that judges use to call into being their own authority is essential, turning to the spatial registers of jurisdiction reveals a rather different perspective on the socio-aesthetics of state form and the legal cosmologies that are being made and remade in contests like the ones I describe. Of course, one need only look to the battle over the Trump administration’s travel ban to see how important these geographies of delegated discretion continue to be in the current moment.

HZ: How these jurisdictional moves alter dominant understandings of the polity’s spatiality makes me think about the creative ways that the lawyers mentioned in the article engage in systemic reform. In discussing “respatializing exclusion,” you point to how they move from focusing on whether or not asylum seekers were in exclusion proceedings to how the exclusion regime itself was illegal (p. 13). This reorientation allowed for the actual substance and content of the asylum seekers’ claims to be reviewed at the administrative and federal level (p. 13). Can their strategies be read as a form of purposeful failure—the idea that one proceeds through each level of the arbitration process not in order to achieve a final outcome, but in order to be rerouted to the next level?

Shafer Cropped (1 of 1)

Diagram of the federal government and American Union by N. Mendal Shafer,
attorney and counseller at law, office no. 5 Masonic Temple, Cincinnati / lith. By Ehrgott,
Forbriger & Co., 1862. (Reproduced courtesy of the Library of Congress)

JK: Litigators working in the administrative tribunals of the US justice system often have to contend with the jurisdictional limits placed on agency bodies. We see that clearly with these judges refusing to entertain constitutional and international law claims. The attorneys who come before them still have to make such claims knowing that they won’t be considered. Failing to raise them would mean forfeiting such arguments. In other words, it’s about preserving a set of topics of dispute for the appropriate institutional setting. The doctrinal logic behind these requirements has to do with judicial efficiency and administrative deference standards not worth getting into here.

While there’s nothing unusual about such moves, they do point up the importance of effective scale-jumping power, something I’m examining in another article currently in preparation. The technical know-how necessary to escape the peripheries of these systems and jump into “higher” arenas with broader dimensional and subject matter jurisdictional reach is crucial to the success of law reform campaigns, in terms of favorable rulings, visibility, and credibility—the latter two being more important for the Haitians who deftly used aggressive litigation to attract media attention, fuel direct action, and garner leverage for their Beltway advocacy. Exclusion processing was designed to keep asylum claims in the lower echelons of the segmentary hierarchy where the INS could maintain more control over them. Ultimately, that effort failed, although alternate versions emerged later with similar results.

HZ: You discuss the “socio-aesthetics of state form” not only through administrative and federal legal procedural pathways, but also through the “jurisdictional landscape of exclusion” (p. 7). As you point out, the exclusion regime was concerned with potential entrance into national space at ports or border check points. In contrast, the deportation regime was concerned with entrance that had already occurred deep into the interior of national space. However, in the contemporary moment, as calls to extend securitized domestic entry points further into the “interior” of national space—that is, roads and entrances to airports and spaces well beyond the US-Mexico and US-Canada borders—increase, is the exclusionary regime reaching deeper into the interior of national space?

Screenshot 1 - Jeff KahnJK: In one sense, yes, absolutely. I believe you’re referring here to recent changes in where “expedited removal”—a truncated form of asylum adjudication that provides applicants less procedural protections—actually applies. At first, expedited removal offered a scaled down review track for asylum seekers attempting to enter the United States at territorial borders and airports. The stated goal was to prevent meritless claims from clogging up administrative and judicial dockets. Others saw it as a means of freeing immigration officials from otherwise applicable legal constraints on their discretion—and not in a good way.

Although expedited removal is not as draconian as the exclusion processing regime of the early 1970s, it in many ways seeks to replicate the flexibility of that program, a flexibility tied to a spatial vision of an immigration border that is not always coincident with territorial boundaries. It is one of the “alternate versions” I referred to earlier. Under the George W. Bush administration, we saw expedited removal begin to creep inward for those crossing land borders and those arriving by sea. Each instance of creep had its own spatiotemporal peculiarities, with those arriving by sea facing the most dramatic reworking of expedited removal’s geography. For up to two years after entry, asylum seekers entering via sea routes—primarily Haitians—could be placed in expedited removal proceedings regardless of where Immigration and Customs Enforcement apprehended them. The border essentially followed them wherever they went.

As with exclusion, expedited removal deviated from the norms that governed full asylum adjudications without appearing to baldly violate traditional rule of law precepts, including the need to separate out prosecutorial and judicial roles. Certainly, the program has been subjected to strong critiques, but it has thus far withstood them. In many ways the disagreements over expedited removal’s legitimacy recapitulate many of the arguments and spatial sensibilities at play in the disputes over exclusion during the 1970s—expedited removal, like exclusion, was initially imagined as a procedure appropriate to the border qua threshold between interior and exterior. Its peculiar way of imagining that border, however, and the tremendous grant of discretion conferred on the Secretary of Homeland Security in defining it, has allowed it to expand deep into US territory. Initially, there were strong indications that the Trump administration would pursue this trend further, giving actuality to the full potentialities contained within the original statutory language.

It is worth remembering though that both exclusion and expedited removal are instances in a longer history of border manipulation. Maritime migrant interdiction, launched in 1981 as a reaction to the victories chronicled in this article, was perhaps the most dramatic of these recent shifts. It literally moved the immigration border hundreds, and later thousands, of miles out to sea and into the territorial waters of other nation-states. As a site of policy experimentation, it too is linked with expedited removal, which borrowed the review standard first used to screen Haitians aboard Coast Guard vessels in the Windward Passage during the early 1990s. In that sense, expedited removal’s expansion is not just a migration of the exterior land borders into the interior but an inward march of sea-based practices as well.

Let me just add that tracing these historical connections is important but ultimately insufficient. We need to develop a conceptual toolkit that helps us understand how phenomena like exclusion processing, high seas interdiction, and expedited removal become thinkable within a culture of law’s rule that would seem, at first blush, to demand such forms be cast out as anathema. What chronotopes of racialized pathology made the Haiti case such fertile ground for producing these models? What forms of technocratic labor become necessary in the quest to build these new infrastructures of state spatiality? What aesthetic imaginaries and built environments do they create? Grappling with the multiple registers of jurisdictional space and the poetics of their expression gets us part of the way to answering some of these questions. As you might imagine, I attempt to go a bit further in the larger book project.

HZ: In thinking about the spatial vision of an immigration border that does not always coincide with territorial boundaries, the shoreline itself comes into focus—here, I began thinking of how the shoreline functions as a kind of eternal quality that gets attached to migrant narratives. As you note, “for up to two years after entry, the border essentially followed [Haitian asylum seekers entering via sea routes] wherever they went.” It strikes me how much the maritime quality of their arrival mattered, and increasingly matters in contemporary European and Australian immigration policies, which are hypervigilant in preventing “unauthorized maritime arrivals.”

I’m wondering then, how does the shoreline itself, fit in to this increasingly mobile maritime border and its screening apparatuses? To what extent does thinking of the shoreline as a zone of exception as Agamben (2005) has theorized it—a site where the inside and outside of the juridical order get blurred—aid in understanding sovereignty as a matter of spatial jurisdiction?

JK: It should come as no surprise given the framing of the article that I’m a bit skeptical of Agamben’s understanding of “exception.” That’s not to say that I think we shouldn’t be wrestling with the idea of exception. We should. I’m interested, however, in what gets coded as exceptional within a given set of discourses and practices rather than expounding some ontology of exception ripped from history.

With regard to the shoreline in particular, its saliency very much depends on who and what one is talking about. This attention to history and context is part of my argument in the article as well. For instance, let’s look at the post-1995 moment when the Clinton administration adopted what would become known as the “wet foot/dry foot” policy with regard to Cubans arriving by sea. The new policy, which was tougher than what had been in place before, allowed Cubans who set foot on US soil—or “dry land”—to receive the benefits of the Cuban Adjustment Act of 1966, which essentially entailed exemption from asylum screening and a quick path to lawful permanent resident status. What exactly constituted “dry land” was another matter. In one case, the answer hinged on whether an abandoned section of bridge in the Florida Keys remained attached to the coast. There’s no doubt that this policy, recently rescinded by the Obama administration, brought the “shoreline” front and center.

In contrast, for the Haitians attempting to enter by sea, let’s say in 1989 (and the timing matters), the shoreline itself was not the most significant marker on the landscape. Stepping onto a beach or bridge was far less consequential than say crossing the twelve-mile limit of the territorial seas, which, it’s worth remembering, is a good distance away from the actual physical coast. Haitians who traversed the twelve-mile limit had a shot, however remote, of eventually receiving asylum in the United States or some other form of relief, whereas those interdicted beyond the territorial seas would almost certainly be sent back to Haiti.

This is where the different registers of jurisdictional space I talk about in the article become useful. They can help one to recognize the contours of the geographies of discretion at play here—where the power to decide on entry or expulsion resides. That’s because the location of discretion depends on various mappings of bureaucratic hierarchies, spheres of subject matter authority (is a screener dealing with Cuban or Haitian arrivals?), and the physical space over which different institutions exert their power (does it stop at the shoreline or extend out to the twelve mile limit?). To get a sense of the spatial qualities these jurisdictional registers exhibit, one needs to read the article and wrestle with the diagrams. Once one has that sense, once one can see that aspect of how authority is structured within these regimes, one can start to recognize how such forms come together as aspects of a larger architecture that changes through time. The relevance of the shoreline, of course, can mutate as part of these larger transformations.

That being said, you’re not wrong in suggesting that shorelines are good to think with. Their capacity to signify as thresholds is not purely contingent. At the same time, it’s not completely determined by their materiality either. A productive approach needs to be attentive to the historicity of how embodied qualities, like those that make shorelines so potentially evocative, become conventionalized.

HZ: In reading this piece, I found it fun and challenging to wrap my head around some of the spatial diagrams you ask the reader to follow as you describe spatial jurisdiction. I realized I need more practice in this kind of mental labor, but perhaps it is also a signal that anthropologists need to be more attuned to understanding phenomena in terms of spatial configurations and relationships. Do you see this piece as contributing a more architectural attitude to grasping how institutional processes work? Do you see the intersection of the anthropology of law and geography as perhaps a nexus point for more creatively tackling the mundane aspects of law and power?

Screenshot 2 - Jeff KahnJK: To begin with, I think visualizations should be attuned to the analytical demands of the material at hand. The diagrams in this article are really part of the argument. Some of them are synthetic products that bring together a host of archival traces in order to reveal the relevant terrain of a particular moment. Others are ethnographic artifacts that I included to demonstrate that the modes of spatial thinking I discuss are not simply ex post scholarly impositions. I can’t imagine having written this article without the use of both types of diagrams, because the images and the text really depend on one another to be effective. In that sense, the figures are not just illustrative. They become the vehicle for a particular mode of theorization.

So, yes, in this instance, I think that the kinds of questions I was asking required openness to spatial conceptualization and visual argumentation. For me, the material provoked this kind of thinking. That’s not to say it required it: I’ve never been of the opinion that one simply encounters data in the world and responds to its demands. Rather, once I began to experiment with different ways of engaging and visualizing the various elements of this adjudication regime, I also began to see things I wouldn’t have otherwise. Method and theory began to blend. In other words, this was an iterative process that wasn’t just about explanation. It was about perceiving in a different way. I’ve found it to be productive, and I hope others will as well.

References

Agamben, Giorgio. 2005. State of Exception. Translated by Kevin Attell. Chicago: University of Chicago Press.

Kahn, Jeffrey. 2017. “Geographies of Discretion and the Jurisdictional Imagination.” Political and Legal Anthropology Review 40(1): 5-27.

Richland, Justin. 2013. “Jurisdiction: Grounding Law in Language.” Annual Review of Anthropology 42: 209–26.

Recommended Citation

Kahn, Jeffrey, and Helena Zeweri. Exclusion, Jurisdictional Space, and Enactments of Sovereignty. PoLAR: Political and Legal Anthropology Review Online, 11 September 2017, https://polarjournal.org/2017/09/12/exclusion-jurisdictional-space-and-enactments-of-sovereignty-an-interview-with-jeffrey-kahn/

 

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