An Endless Return to the Original Wound

An Endless Return to the Original Wound—A Legal Anthropological Investigation on the Dis/appearance of the State’s Signature in the Contract Making between “the Migrants” and “the State” on the US-Mexico Border

The doctor looked at the prostrate body and felt for the pulse. Then he said to the old man, pointing at the window, ‘Open it.’

The young woman on the stretcher moved slightly. Her hands groped for the cord which kept her shalwar tied round her waist. With painful slowness, she unfastened it, pulled the garment down and opened her thighs.

‘She is alive. My daughter is alive,’ Sirajuddin shouted with joy.

The doctor broke into a cold sweat.

— Saadat Hasan Manto, a passage from The Return

In Search of the Signature of the State

I want to start with two pieces of descriptions on South and Central American migrants’ painful experiences in the beginning/end of the course of US-Mexico border crossing.

1. A young mother stares over the border wall in preparation for another go at it. For many migrants, the post-deportation world of la linea is just one chaotic stop on the way to another crossing attempt.

2. There was this one guy, Beech (a prison guard) said, we couldn’t keep the bastard from cutting himself. Swear to god, all he thought about all day was how to slash through his own skin…This same motherfucker, one day I get called into his cell and he’s just sitting there with his crotch all covered with blood. Dude had sliced his cock up with a filed-down plastic spoon. I shit you not. The other agents yelled out and one of them threw an empty can of Monster at Beech’s feet. For Christ’s sake, one cried, holding his stomach. Beech laughed.

Border crossing is never linear but cyclical, as a border patrol agent said: “They know the game, they’re docile if caught. They’re delayed eight hours and then they do it over again. That’s all we basically do, delay them.” Border crossing, especially after the notorious policy of “Prevention through Deterrence”was fully implemented, has become much more costly and deadly for migrants whose every attempt tears open old wounds and adds new ones. What strikes me the most is the fact that in this endless cycle of injury and pain, not only has there been failure to acknowledge migrants’ suffering by the state, but also injury is normalized in migrants’ daily life as injury itself has lost its rawest phenomenological claim, “I am in pain.” Indebted to Veena Das, I do not mean an intellectual or factual statement of injury/death but a response by the state, which is obliged to either acknowledge the victim’s suffering or deny it. An acknowledgement, which legally means an “avowal of an act and document so as to give it legal validity,” is followed by legal responsibilities, i.e., timely rescues and investigations, sufficient medical treatments and financial support, detailed identifications of unclaimed dead bodies, and prevention of future inflictions. A denial of the victim’s pain “is not about the failings of the intellect but the failings of the spirit.”

People would probably ask: how would you expect the state to respond to illegal migrants’ injuries besides some numbers and indicative statements? In the hope of urging the state to make genuine changes, scholars have found tremendous amounts of evidence to explain how migrants have been purposefully and systematically abused and killed at the border by the state. So far, nothing has happened. Is the state just too spiritually and morally corrupt to give its signature to acknowledge migrants’ physical suffering? In my opinion, this term, spiritual failure, makes it convenient for the state to avoid its full responsibilities for preventing and compensating for migrants’ injuries and allows people to stop interrogating what constitutes this absence of the state’s signature. Hence, from a perspective of legal anthropology, I chose to take a modest step to only focus on the legal aspect— how the border policy making and exercising, to a certain extent, constitute and are constitutive of the dis/appearance of the signature of the state at ideological, symbolic, and physical levels.

Before talking about this dialectic between the dis/appearance of the state’s signature and the law, I want to clarify what I mean by the state, which is never as homogeneous and centralized as it appears to be. Here, I rely upon Timothy Mitchell’s definition that the state “should be examined not as an actual structure, but as the powerful, metaphysical effect of practices that make such structures appear to exist.” Following the Foucauldian line of thought, Mitchell argues for two major consequences of disciplinary power, which question the predominant view of the state as a separate and unified entity apart from society. Firstly, rather than solely receiving and obeying orders from an abstract state, local institutions, like schools, armies, companies, etc. generate power themselves through disciplinary work, which compartmentalizes the social processes, rearranges different parts, increases the overall efficiency and precision, and reassembles them into more productive combinations. Secondly, it is through the constant repetition of a series of actions in which space is organized, time is calibrated, human bodies are disciplined, and all elements are combined and coordinated, the magnificent and metaphysical structure of the state starts to appear.

Therefore, for Mitchell, the question of the state’s signature is less relevant to a univocal and authoritative statement from “the state” than to the disciplinary and repetitive statements generated from all levels of the entire bureaucratic machine. Then, why have the local institutions also failed to acknowledge migrants’ suffering and to give necessary medical and financial support, as we saw examples of border agents joking at the self-mutilating behaviors of the migrant and being numb to the physical cruelty migrants face everyday? I am not saying that all border agents are blind to others’ pain but undoubtedly there is a systematic and structural reason disciplining and coercing them to prioritize a specific security paradigm described by Ieva Jusionyte, which is highly territorial, jurisdictional, nationalist, and preemptive to “all threats and hazards.”

The state’s security mania and power-hungry mindset have been theoretically and empirically proven and analyzed as we see from Giorgio Agamben’s idea of homo sacer whose life is reduced to bare life and Achille Mbembe’s theory of necropolitics in which the limits of sovereignty reside in its control over life and death. However, how can we then understand the inconsistency between political liberalism that guarantees the social contract between the people and the state and the state’s ontological sovereign power in a neoliberal and democratic context—in this case, the US? The way I try to analyze this inherent paradox is to explore the legally sanctioned process of contract making. To a certain extent, contract making is much more brutal and despotic than an authorized contract, an epitome of capitalist violence itself, as mentioned by various scholars. In the process of contract making, the being-legalized/contracted party—in this case, the migrants—is forcibly bounded to various preconditioned inequality clauses and assumed all responsibilities without being given any right whatsoever since they are not legalized/contracted yet. In other words, in the making of a contract, the state is “legally” entitled to reduce migrants to bare life; therefore, this essay tries to interrogate how the law sustains the contract making between “the state” and “the migrants,” in which theories, rhetorics, functionaries, and migrants are all caught up in this fantastic dialectic.

The Economy of Injury

In the essay, by “law,” I refer to both the Law as a metaphysical and theoretical construct above social practices and the law as mundane legal processes. Before engaging in specific analyses of legal processes carried out on the border, I want to firstly explain how the law, as a theoretical construct, works in the dialectic of contract making, in which an economy of injury is produced. Giorgio Agamben points out that the “sovereign ban” is fundamental to the power of the law, which “lies precisely in the impossibility of entering into what is already open, of reaching the place where one already is;” therefore, migrants are banned outside of the open gate of the law that simultaneously includes them. Under the “sovereign ban,” a border injury must be read as “I am illegal” rather than “I am in pain,” because an acknowledgement of injury would mean an inclusion of migrants within the law with a set of legally guaranteed rights. In practice if injured migrants are found by border patrol, they could get some treatments; however, as I will argue later, it is more a technical disposal rather than an acknowledgement validated by a signature.

I want to go a step further. In Kafka’s story, “Before the Law,” from which Agamben derives the notion of the “sovereign ban,” the man wants to give things to the gatekeeper of the law to exchange for his permission. However, the gatekeeper says indifferently: “I am taking this only so that you do not think you have failed to do anything.” For the man, the things are used as the currency in exchange for permission; however, the gatekeeper who will never grant the man permission and is not interested in receiving anything, receives these things as merely a proof of the existence of himself and the imaginary “gate/boundary” of the law. Then if we assume that injury is the thing being exchanged between migrants and the law, it is injury that marks the conceptual “boundary” of the law and the efficacy and the ontological meaning of the heavily funded border protection facilities and personnel as well as millions of dollars of security industries. The law does not exist without injury.

More importantly, the hidden message of the gatekeeper’s words is that: “if you do not think you have failed to do anything, then keep doing it.” Therefore, migrants who failed often have the notion that they did not take enough risk by choosing an easy route, as a migrant said: “You need to put yourself into the most difficult places that you can where people can’t get to.” Migrants have been tricked into this economy of injury with the law, in which the law feeds on migrants’ flesh and blood and migrants only get an illusion of a promising admission into the law. Hence, in “Before the Law,” the gate of the law is finally closed after having drained the last drop of blood from the man. As mentioned, the young mother would risk her life on the border over and over again, because the law paves the way for her to do so. Theoretically, the law lives off the economy of injury, so it cannot afford to say: “Yes, I know you are in pain,” as though the gatekeeper said to the man: “Yes, you have succeeded.” The law will never allow the signature to be given to complete the transaction because that would be the end of the economy of injury and the end of the law itself.

The metaphor of the economy of injury or striking a deal is powerful, because it suggests a formation of a contract founded upon a neoliberal idea that both parties are “independent” and “responsible” legal subjects; I want to emphasize this point here, since this theoretical construct leaves its imprint everywhere at the border. Of course, the dis/appearance of the signature of the state cannot be reduced to a mere conceptual economy between injury and the law. Migrants are literally dying en route from falling off the fences, being drowned in rivers, eaten by wild beasts, killed by drug traffickers, and shot by the border agents; as Jusionyte says: “The genre of everyday life on the line was best described as magical realism. It didn’t have to sound reasonable to be true.” It does not mean that everything is dissolved into inconceivable contingencies. Behind the facade of the uncontrollable and incalculable, the signature of the state is dis/appeared both in the rhetorical discourses by the state through the language of law as well as in the daily repetition and re/presentation of legal processes by the local institutions and the legally disciplined subjects, including migrants themselves.

They Would’ve Chosen to Injure Themselves if They Could’ve even if They Didn’t

This essay focuses on two major sets of definitions of “signature” from the Oxford English Dictionary—1) “The action of signing one’s name; authorization or authentication of a document, letter, etc., by signing it;” 2) “A distinguishing mark; an identifying feature.” The first half of the essay will address the first set of definitions. As Jacques Derrida comments:

The signature also marks and retains his having-been present in a past now or present (maintenant) which will remain a future now or present (maintenant), thus in a general maintenant, in the transcendental form of presentness (maintenant). That general maintenance is in some way inscribed, pinpointed in the always evident and singular present punctuality of the form of the signature. Such is the enigmatic originality of every paraph.

A signature is, therefore, a perpetual and singular presentness, which confirms the signer’s agentive witnessing of the entire authorization or authentication. Is the “decent” state present when “brutal” migrants are trespassing? Is the “civilized” state witnessing the killings of “barbarians?” Is the “lawful” state responsible for the deaths of “illegal” migrants? Immediately, these discursively constructed questions obscure the fact of the state’s presentness and agency in injuring and killing migrants, so we need to trace the sources of the rhetorical discourses of distraction and obscurity, i.e. the socio-symbolic ideas of migrants’ “illegality,” “impurity,” “brutality,” and most importantly, “agency.”

One of the things I experienced when I was in Nogales was people who were not really physically capable of climbing the fence on their own, they would get assistance to climb the fence and then not be able to handle their own weight when they came over the top of the fence and we would have people losing fingers on the fence, we would have people breaking ankles coming to the ground with compound fractures. That was among the things that we were faced (with) that prompted us to place an additional structure on top of the fence that even with assistance, somebody who was not physically strong would not be able to negotiate the fence. It stopped those people from even trying and significantly delayed even the most able.

This particular excerpt from the congressional testimony given by Kevin Stevens, Senior Associate Chief of Customs and Border Protection, sheds light on two key points, which ground the self-renewing and ontological logic of the “mechanism of injury”—1) in Brian Massumi’s opinion, a legitimate preemptive action to contain a threat is based on a “double conditional:” would-have, could-have; if migrants could have enough physical support, they would climb the fence regardless of the possibility of being injured. If they do not have enough physical support right now, they will wait until they do, so “the case remains open,” a constantly self-renewing state. 2) Migrants are granted an assumed “agency” whereby they have the full “autonomy” to choose to injure themselves to cross the border and to translate potentiality into actuality, as what Stevens implies by saying migrants “negotiate the fence.” Therefore, Stevens uses an ironical term, “prompted,” to describe the policy of strengthening the fence, alluding a sense of “passivity” versus the “activity” by migrants who are “autonomous” negotiators. The metaphor of starting a transaction appears again, and like the gatekeeper in Kafka’s story, Stevens falsely accuses migrants of starting the transaction.

Following Stevens’ implied logic, for the policies to work, the state apparatus also needs to assume constituting power; different from migrants’ “power” that is natural and unpredictable, the state power is rational and predictable, in the name of the Border Calculus, a sophisticated chart of border protection mechanism (see appendix). However calculable, sophisticated, and deliberate the patrol mechanism appears to be, the very nature of the state power is affective and preemptive, which is “retrospectively legitimated by future actual facts,” and whose legitimacy and logic will also not be compromised by the failure to produce material facts. The rhetorical and symbolic message embedded here which is processual rather than completed and responsive rather than agentive, postpones the state’s signature. The deal is being negotiated, the threat would escalate, and more walls will be built as long as the contract is still being made.

Unifying Juridical Parities

So far, I think the neoliberal notion of contract making with an assumption that both parties are “free” is proved to be underlying the ideological and symbolic formations of the border policy-making mentality. I will continue discussing this notion and its derivative forms in physicality throughout the entire essay. Building upon the previous section that argues the unilateral decision of starting a contractual process by the state, this section focuses on how the state realizes the two conceptually unified parties—“the state” and “the migrants”—through the law. Since I have already mentioned Mitchell’s idea of the state as a structural effect, how does the law discipline the institutions and functionaries to behave as a univocal “state” and individual migrants as an imaginary “collective” to sign a contract whose clauses and standards were set up beforehand by the state?

On the part of “the migrants,” this discursive party-making process reveals when the border crossing injuries are classified under different categories entitled for different types of treatments. For example, certain evident injuries are qualified for air transport of the patient to emergent treatment, which include “anatomic and physiologic criteria, such as penetrating injury, amputation of a hand or a leg, fractures of two or more long bones, or a Glasgow Coma Scale of less than 14.” However, less evident injuries, even finger amputations, are not considered severe enough for trauma alert. This phenomenologically and physically based typology of injury treatment might cause further damages; some life-threatening traumas like “skull fracture, tension pneumothorax, internal bleeding,” which cannot be observed physically, are likely to be left untreated. The only purpose of this typology is to forcibly package all injured migrants with various degrees of injuries and underlying medical conditions as a single collective which is medically measurable and politically legible.

As for “the state,” the degree of party-disciplining and unifying process varies among different institutions and types of functionaries. Particularly, in response to migrants’ injuries, people tend to assume that in contrast to law enforcement, emergency responders including medical workers privilege life over laws and protocols, suggesting that emergency responders are outliers unfitting to a legally constituted and unified party. However, this assumption is partially true. Two examples given by Jusionyte explain how emergency responders are as much restrained as everybody else in this legally constructed bureaucratic field. First, emergency responders often refuse to go to the Mexican side to save lives “first, because US insurance does not cover emergency responders or their equipment operating in Mexico, and second, because there are no laws that protect them from liability.” The other example is even more ridiculous. Due to the tariff restrictions. medical equipment and supplies are not allowed to be carried across the border from the US to Mexico, so a lot of Mexican backboards which were used to transport patients, end up at Tucson hospitals and cannot be taken back, leaving the Mexican side short of backboards. Furthermore, since the Mexican emergency responders are underfunded, medical equipment which is produced in Mexico has to be brought to Arizona and then through concerted efforts, usually in the name of the binational meeting, be donated back to Mexico again. The whole cyclical process of red tape requires collaborations with the Mexican Consulate and American institutions.

As Hannah Appel comments on the contradictory nature of contract making, on the one hand, it unifies specific interests, security over humanity in this case; on the other hand, “the contract allows room for those specific interests to renounce it as not of their making” if the contract goes bad. “Not of their making” means a lack of witness, presentness, and authorization. Therefore, the dis/appearance of the state’s signature is not only due to the fact that the contract is not finalized yet, but also the very nature of the contract making itself is to distance the actual signer from the contract and blame others when it comes to responsibilities, which could be the other party or other tangential factors. In order to further strengthen the neoliberal hegemony of contractual relationships, forming a “free” and “unified” party is not only a result of legal classification and discipline as a collective, but also an effect due to the individual subjectivization of being self-responsible realized by the law either through legal consciousness or interdiction. Therefore, the next section will explicate this concept.

Subjects with Responsibilities but no Excuses

Not only is this state-enforced notion of being a “self-responsibilized” and “self-possessed” person made explicit in the policy-making process as we saw in the Stevens’ speech, but also the law enforcement enforces this notion literally regardless of the fact that most migrants do not have the means to take care of their injuries. The first incident happened when Jusionyte, as a border paramedic, met a 17-year-old boy with fever at the Border Patrol Station. The boy was not allowed to be administered medications since the protocols did not allow border patrol to administer medications to reduce fever or emergency responders to administer NSAIDs (Nonsteroidal anti-inflammatory drug) either. The boy could only take any medicine he brought with him, which he did not have. Eventually, Jusionyte gave him some ibuprofen, which was not in anyone’s protocols. The protocols did not distinguish a minor from responsibilized adults nor did the law enforcement who saw migrants as all subjects rather than human beings.

Making migrants responsibilized subjects does not stop at the interpersonal interactions between them and the law enforcement. This notion has already become the paradigm at the border; by “paradigm,” I mean the symbolic meaning interspersed by rhetorical claims has been incorporated into daily law enforcement and realized in legislation, which has systematically and continuously shaped the institutional and individual responses to migrants’ injuries. One example is the ending of the reimbursement for the cost of emergency care of migrants in 2008, before which Section 1011 of the Medicine Prescription Drug, Improvement, and Modernization Act of 2003 designated funding to these costs. Due to the financial distress resulting from this legislative change, hospitals, like University Medical Center in Tucson, have to send stabilized patients back to their home countries, which might cause a series of financial and medical burdens on repatriated patients. A doctor says:

Now they go back to Mexico in an even worse physical condition, having suffered pretty significant injury. What’s gonna happen to them in terms of their ability to survive in their environment? What’s their follow-up going to be? If there is a surgical complication, what’s gonna happen to them?

Loic Wacquant thinks that the state, particularly the US, has manufactured a salient dichotomy between the social and the criminal as well as sociology and the law, in which the sociological excuses for delinquency are feminized and downplayed whereas the individual responsibilities are masculinized and emphasized. Under the paradigmatic leaning towards individual responsibilities, the state has only two things to do to “solve” the problem—to prevent and to punish. Again, contextualizing Derrida’s definition of “signature” in this pathological paradigm, we can see that the perpetual and singular presentness of the signer is purposefully lacked since the social is never taken into the consideration of the law by which the state is governing. The law does not listen to any individual suffering or excuses because it only sees migrants as “free” subjects who “choose” to suffer and injure, which the state represses rather than redresses.

Severing the Chain of Signs and Hiding “the System of Signatures”

Injuries are not merely physical facts but also messages, statements, and traces, as Ed Vulliamy cites what Dr. Hiram Muñoz says: “Each different mutilation leaves a clear message. They have become a kind of folk tradition.” An open text, each injury tells a story in which an idiosyncratic experience is weaved into a collective voice to create a shared consciousness beyond a mutilated body. The transformation from injurious experiences to grievances, grievances to disputes, and disputes to litigable claims, requires an understanding of the entire social and legal process. However, in the course of this process, the “mechanism of injury” exceeds its mechanical functionality of calculating, predicting, and inflicting injuries on migrants’ bodies and assumes a power of limiting and dictating the narrativity of migrants’ injuries. It is this transformative process that the second half of the essay tries to interrogate.

As mentioned, the second dimension of “signature” suggests its quality of signifying and identifying. As a signifier deliberately left by God, as Michel Foucault remarks, a signature(s) can reveal, “the shadow and image of God” and “internal virtue.” De León argues that a major consequence/purpose embedded in “Prevention through Deterrence” is to impute the apparent cause of injury/death to nature by complicating and multiplying agencies and contingencies, the hybrid collectif in his words. Hence in order to get to the “internal virtue,”—in this case, the state’s full awareness of and responsibility for the migrants’ suffering—a multiplicity of signs/signatures have to be found, deciphered, and connected. “The system of signature” has to be formed, as Foucault says:

A knowledge of similitudes is founded upon the unearthing and decipherment of these signatures…The system of signatures reverses the relation of the visible to the invisible…but in order that this form may be brought out into the light in its turn there must be a visible figure that will draw it out from its profound invisibility.

Having said this, by relying upon Derrida’s criticism of written signs, I will explain how the legal processes hide “the system of signatures” by only selecting “written” sign(s) by virtue their iterability, because the legal processes only care about the functionality of the signs rather than their communicability of the hidden truth. If the first half of the essay argues that the law prevents the state from signing on the contract-being-made, the second half is about how the law hides the signature; it is in this process of selecting signs the contract making and the economy of injury is perpetually sustained. Let us see one example by Francisco Cantú who was at a death scene of a migrant:

The boy asked me what would happen to the dead man…the body would be turned over to the tribal police. They asked if the body would come back to Mexico with them, if they could bring it back to their village. I told them that they could not, that the body would be taken to the county medical examiner, who would try to determine the cause of death…it was the (Mexico) consul who would make arrangement for the repatriation of the body to Mexico…Maybe the consul can provide you with some documentation, I suggested, something to take home to your family.

…

He (another agent) told me that finally the storm had come and dispatch had told him to just leave the body there because the tribal police wouldn’t have an officer to take charge of it until the next day. It’s all right, he told me, they have the coordinates…We stood for a few more minutes talking about the storm and about the human body that lay there in the desert, in the dark and in the rain, and we talked of the animals that might come in the night and of the humidity and the deadly heat that would come with the morning. We talked, and then we went home.

The modern governmentality, as I argued, is constituted by the disciplinary repetition of social practices stipulated and regulated by the legal processes, and one of the major modalities of the legal processes is the variety of “technologies of writing,” In this example, the “written” signs (italicized in the quotations), which would be preserved to compose the final narrative of the death report, were the coordinates of the location, a county medical examination report on the remains which could have been destroyed by the storm or eaten by the animals, the dispatch, the border agents’ and the tribal police’s reports, and Mexico consul’s documentation. Obliterating the legally unrepeatable, incalculable but unique and identifying signs like the boy’s feeling, the storm, the humidity, and the animals, the law only allows written signs to be discovered, because the latter “carries it with a force that breaks with its context,” which “possesses the characteristic of being readable even if the moment of its production is irrevocably lost and even if I do not know what its allegedly author-scriptor consciously intended to say at the moment he wrote it.” However, for the purpose of readability and repeatability, the coherent chain of signs is severed and the system of signatures is concealed by the legal processes, because the law concerns its repeatable functionality of stating injury/death more than the “internal virtue” of acknowledging injury.

The Magic of the Law—Ambiguity and Fetishism

If the previous section illustrates how the legal processes “rationally” obliterate the signature of the state by systematically filtering out signs that are not iterable, this section will argue that the law has also “ir/rationally” lost the state’s signature given its inherent illegibility to law enforcement, its nature of being a fetish, and its power of history-writing. Again, owing Das a debt of gratitude for her insights on the mimetic performance and forgery of the institutional power given the fact that the law is not always readable for its executioners, I see the border as a place where the normality of the law runs out but ab/normality resumes and unseen individual signature takes over the state’s. Here is another example by Cantú who describes what agents would normally do to a migrants’ lay-up spot without any specific legal guidance:

What you do depends on who you’re with, depends on what kind of agent you are, what kind of agent you want to become, but it’s true that we slash their bottles and drain their water into the dry earth, that we dump their backpacks and pile their food and clothes to be crushed and pissed on and stepped over, strewn across the desert and set ablaze…men lost and wandering without food or water, dying slowly as they look for some road, some village, some way out.

Walter Benjamin describes how police violence functions in a paradoxical manner of both law-writing and law-preserving; we can see that in daily exercising of the law, agents’ decisions and actions hinge upon contingencies and their individual discretions. However, by no means does it indicate a completely arbitrary regulation, agents predominantly function in a preemptive security paradigm by in/directly inflicting physical suffering on migrants to force them to give up crossing. The point is that when the law no longer specifies the means, individual agents justify the means by the end stipulated by the law. Agents’ individual means and policing power do not exist in any written document, like ghosts, formless and untraceable, leaving no signature behind.

Not only is the law illegible, but also it is fetishized. It is in the futile and irrational process of fetishizing the law as an abstract panacea regardless of its actual efficacy, that the state’s signature is rendered obscure. There is an incident happening at the starting point of the border crossing:

(Before the crossing, a Mexican official instructs migrants) The migrants are then told that they should report any abuses experienced at the hands of American law enforcement…Someone says he was mistreated by Border Patrol several times. The official tells him he should file a report. No information is given on exactly how one would go about doing this, but the official reiterates the importance of filing a report.

Before embarking on the deadly crossing, migrants were ceremoniously taught by Mexican officers to use the law to their benefit, who ironically did not tell them how to use this “powerful and magical” weapon. Mark Goodale explains how the local human rights network takes on a life of its own as an ontological being separate from whatever results it might produce in the end. As mentioned, the relationship between agents and migrants has become an endless cycle of catch and release, in which both parties are already socialized to this process and any rupture like a legal request by a migrant for human rights protection is deemed abnormal for this “coherent” choreography. Therefore, the post-capture legal procedures are almost mechanically indistinctive for every one of the captured migrants approximately 99% of whom plead guilty immediately without any complaint about human rights infringement or request for due process; De León calls this a “kangaroo court.” Agamben describes any space in which bare life and the judicial rule are no longer distinguishable from one another, as analogous to a camp. Every time the judge calls the defendant with a case number, then gets the same response, “Presente,” and finally gives the same ruling, “Culpable;” the law which is fetishized as the ultimate “impartiality and objectivity,” reduces migrants into numbers and culprits and eventually lives off migrants’ lives, who are unable to say anything except “Si” to the law.

As the previous two examples demonstrate, the magical power of the law confuses the state’s sovereignty with agents’ individual sovereignties and lures migrants into a process of fetishization in which nothing is done but a penalty. The last example is about the ultimate form of its magic—to make things disappear and alter history. De León, an archaeologist turned sociocultural anthropologist, expresses his frustrations while seeing archaeological evidence and material traces of border crossings have been systematically cleaned up since the early 2000s; as he quotes a passage from the 2011 report of the Bureau of Land Management (BLM):

The cleanup and remediation projects were focused in the area within 100miles of the United States border with Mexico…Major impacts of smuggling and undocumented immigration included the accumulation of trash along smuggling corridors, the creation of illegal roads and trails and look out points throughout the border landscape.

As the bodies of migrants are denigrated as illegal and dangerous, their personal belongings are deemed to be trash without legal significance. Therefore, by erasing the past, the magic of the law foretells the future. Anand V. Taneja explains how the Archaeological Survey of India (ASI) in Delhi creates “archival amnesia” by preventing researchers from accessing resources on the city’s Islamic heritage and categorizes Islamic monuments and relics as “dead” and “conserved” only for archaeological purposes rather than for popular worshipping. Not only the past has been concealed, but more importantly, the postcolonial state constitutes an ahistorical, homogeneous, and increasingly Hindutva modernity. Oscillating among ambiguity, fetish, and amnesia/erasion, the magical power of the law creates a new “reality” at the border where the individual agency starts to come into play, the legal process is essentialized, and finally the entire future is prescribed by rewriting and erasing history. Thus, in this legally constituted “reality,” there is nowhere to find the state’s signature; there is no way out of this deadly circle, a physical, sociological, and psychological perpetuation of suffering. Migrants always come back to the point where they started and repeat the cycle until they have lost everything without even realizing it; it is an “ambiguous loss,” the ultimate manifestation of human sorrow, which neither closes nor leads to anywhere.

The Return

Let’s return to the very beginning of the essay, the small passage from a short story entitled The Return by Saadat Hasan Manto. The story tells of an old man, Sirajuddin, who lost his daughter, Sakina, during the Partition of India, so he asked a group of young men to help him find her. The young men found her but lied to Sirajuddin that they did not. Later Sirajuddin found Sakina at a clinic, as we saw in the passage. Although the story does not explicitly say this, it is clear that Sakina was raped by these young men who promised her father to bring her back. The name of the story appears in other places as Khol Do (Open it), but my source names it, The Return; I prefer the latter since it captures the ultimate form of injury, which is the return of a physical “corpse” with a loss of virginity, honor, home, and self-respect. Like the migrants, Sakina, after having heard “Open it,” took it as a command and mechanically opened her legs to choose to be injured again, because she already lived off injuries as a mode of being. If the law is the omnipresent and omnipotent power at the border which has discursively bounded migrants to the endless economy of injury, the Partition, the pinnacle of structural, physical, and ethnic violence(s), also left Sakina with no option but suffering injuries.

The most horrifying truth is that there is no way out but an endless return to the original wound. As I argued, in theories, rhetoric, and daily practices, the state, which constitutes and is constituted by the law as a language, a weapon, and a modality, is able to monopolize all physical, economic, informational, and symbolic capital to start and perpetuate the lethal dialectic of contract making between “the state” and “the migrants.” Subjects, packaged into the party of “the migrants,” have been exploited to a point that they cease to be anything, neither human beings nor legal beings but zombies. In this exceptional state of (non)being, injury is deprived of its naturally provocative power of evoking recognition and storytelling, which is voiceless, meaningless, and disconnected to the public; the meaningless injurious experience reduces the injured to mere dead bodies like Sakina and the millions of migrants who cross the border over and over again.

Border Patrol Calculus

References:

1 Saadat Hasan Manto, The Return, in Bitter Fruits: The Very Best of Saadat Hasan Manto trans. Khalid Hasan (New Delhi: Penguin, 2008), p. 41.

2 This essay focuses on physical injury with an emphasis on: 1) its progressional aspect — a wound might be aggravated and lead to death without proper treatment; and 2) its verbal aspect — to hurt and damage. Therefore, “injury” has been used to include a sense of potential death as both a consequence and a purpose.

3 Jason De León, The Land of Open Graves: Living and Dying on the Migrant Trail (Oakland: University of California Press, 2015), p. 143.

4 Francisco Cantú, The Line Becomes a River (New York: Riverhead Books, 2018), p. 62-3.

5 Josiah McC Heyman, “Putting Power into the Anthropology of Bureaucracy: The Immigration and Naturalization Service at the Mexico-United States Border,” with “Commentary” and “Reply by the Author.” Current Anthropology 36(2) (1995): 270.

6 A strategy used by the US border enforcement, which relies upon the lethal natural terrain, particularly the Sonoran Desert, to deter migrants from the south. For more information, see De León, The Land of Open Graves.

7 Stanley Cavell, “Comments on Veena Das’s Essay “Language and Body: Transactions in the Construction of Pain,” in Social Suffering ed. Arthur Kleinman, Veena Das, and Margaret Lock (Berkeley: University of California Press, 1997), p. 94.

8 “acknowledgement | acknowledgment, n.” OED Online. https://www-oed-com.ezp-prod1.hul.harvard.edu/view/Entry/1614?redirectedFrom=acknowledgement#eid

9 Veena Das, Life and Words: Violence and the Descent into the Ordinary (Berkeley: University of California Press, 2007), p. 57.

10 See De León, The Land of Open Graves and Ieva Jusionyte, Threshold: Emergency Responders on the US-Mexico Border (Oakland: University of California Press, 2018).

11 Informed by Benjamin’s idea of the paradox of policing, I use “law exercising” to include both “law maintaining” or “law announcing.”

12 Timothy Mitchell, “The Limits of the State: Beyond Statist Approaches and Their Critics,” The American Political Science Review 85(1) (1995): 94.

13 Ibid, 93.

14 Ibid, 93-4.

15 Jusionyte, Threshold, p. 20.

16 Agamben, Homo Sacer, p. 8.

Achille Mbembe, “Necropolitics” trans. Libby Meintjes, Public Culture 15(1) (2003): 12.

17 For example, Carole Pateman and Charles Mills, Contract and Domination; Hannah Appel, The Licit Life of Capitalism, etc.

18 Giorgio Agamben borrows the old Germanic term, ban, from Jean-Luc Nancy to indicate both exclusion and authorization by the sovereign. See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare life trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), p. 28 & 49.

19 Franz Kafka, “Before the Law,” trans. Ian Johnston, Franz Kafka Online. https://www.kafka-online.info/before-the-law.html

20 De León, The Land of Open Graves, p. 189.

21 Jusionyte, Threshold, p. 61.

22 By “legally disciplined subjects,” not only do I mean people who are mindful of all laws and rules, but also people who are disciplined within the power relations prescribed by laws and rules without being conscious of it or not.

23 “signature, n. and adj.” OED Online. https://www-oed-com.ezp-prod1.hul.harvard.edu/view/Entry/179546?rskey=0TYMnC&result=1#eid

24 Jacques Derrida, “Signature, Event, Context,” in Limited Inc., ed. G. Graff (Evanston: Northwestern University Press, 1988), p. 20.

25 Kevin Stevens, Testimony at the Joint Hearing before the Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity of the Committee on Homeland Security with the Subcommittee on Criminal Justice, Drug Policy, and Human Resources of the Committee on Government Reform, House of Representatives, 109th Congress, Second Session, July 20, 2006.

26 Jusionyte, Threshold, p. 65.

27 Brian Massumi, Ontopower: War, Power, and the State of Perception (Durham: Duke University Press, 2015), p. 192.

28 Agamben, Homor Sacer, p. 47.

29 The US Homeland Security provides a sophisticated digram to describe its border patrol calculus. Border Patrol Calculus from Testimony of Deborah J. Spero and Gregory Giddens before U.S. House of Representatives Committee on Homeland Security, presented Nov. 15, 2006, appendix. https://www.govinfo.gov/content/pkg/CHRG-109hhrg35630/pdf/CHRG-109hhrg35630.pdf

30 Massumi, Ontopower, p. 194.

31 Jusionyte, Threshold, p. 65.

32 Ibid, 99.

33 Ibid, p. 103-4.

34 Hannah Appel, The Licit Life of Capitalism: US Oil in Equatorial Guinea (Durham: Duke University Press, 2019), p. 146.

35 Jean Comaroff and John Comaroff, The Truth about Crime: Sovereignty, Knowledge, Social Order (Chicago: University of Chicago Press, 2016), p. 12 & 28.

36 Jusionyte, Threshold, p. 80.

37 Heidi Rowley, “Feds to End Funding of ER Care for Migrants,” Tucson Citizen, August 28, 2008, http://tucsoncitizen.com/morgue/2008/08/28/95093-feds-to-end-funding-of-er-care-for-migrants/.

38 Jusionyte, Threshold, p. 55.

39 Ibid, p. 56.

40 Loic Wacquant, Punishing the Poor: The Neoliberal Government of Social Inequality (Durham: Duke University Press, 2009), p. 8-9.

41 Ed Vulliamy, Amexica: War Along the Borderline (New York: Farrar, Straus and Giroux, 2011), p. 51.

42 Michael Jackson, The Politics of Storytelling: Variations on a Theme by Hannah Arendt (Copenhagen: Museum Tusculanum Press, 2019), 145.

43 William L.F. Felstiner, Richard L. Abel, and Austin Sarat, “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…,” Law & Society Review 15, no. 3-4 (1980-81): 632.

44 Michel Foucault, The Order of Things: An Archaeology of the Human Sciences trans. Les Mots et les choses (New York: Vintage Books, 1994), p. 26.

45 See De León, The Land of Open Graves, p. 39. De León “draws inspirations from Callon and Law’s theory of the hybrid collectif, which posits that agency is an emergent property created by the interaction of many heterogeneous components known as actants, sources of action that may be human or nonhuman.”

46 Foucault, The Order of Things, p. 26.

47 Derrida, “Signature, Event, Context,” p. 9.

48 Cantú, The Line Becomes a River, p. 56-8.

49 I borrow this term from Das, as she says writing here suggests “modalities, different from that of textual domination in the state’s performance of authority.” See Das, Life and Words, p. 163 & 256.

50 Derrida, “Signature, Event, Context,” p. 9.

51 Das talks about the “magical mode” of regulation by the state, by which power is interspersed within daily life of people in a secret manner through rumors, gossips, obscenities, etc. See Das, Life and Words, p. 162-3. Here, instead of talking about the state in general, I only focus on the legal aspect of the magical mode of regulation.

52 Das, Life and Words, p. 163 & 172.

53 Cantú, The Line Becomes a River, p. 33-4.

54 Walter Benjamin, “Critique of Violence,” in Reflections: Essays, Aphorisms, Autobiographical Writings, ed. P. Demetz, trans. E. Jephcott (New York: Harcourt Brace Jovanovitch, 1986), p. 286-7.

55 Ibid, p. 287.

56 De León, The Land of Open Graves, p. 132-3.

57 Mark Goodale, Anthropology and Law: A Critical Introduction (New York: New York University Press, 2017), p. 103-4.

58 De León, The Land of Open Graves, p. 110-2.

59 Giorgio Agamben, Homo Sacer, p. 174.

60 De León, The Land of Open Graves, p. 112.

61 Ibid, 199.

62 Anand Vivek Taneja, Jinnealogy: Time, Islam, and Ecological Thought in the Medieval Ruins of Delhi (Stanford: Stanford University Press, 2018), p. 23 & 25.

63 De León, The Land of Open Graves, p. 274.

64 Pierre Bourdieu, “Rethinking the State: Genesis and Structure of the Bureaucratic Field,” trans. L. Wacquant and S. Farage, in State/Culture: State-Formation after the Cultural Turn ed. G. Steinmetz (Ithaca: Cornell University Press, 2018).