Illegality and Idiocy: Only One Can Be Solved for Sure

Yesterday, the New York Times published a roundtable “Room for Debate” on whether it is wise for undocumented persons should “come out.” Now, I thought that it was the NYT who decided to apply the term “coming out” to undocumented persons, and was prepared to lambast their self-serving idiocy yet again. But, apparently that honor goes to some law faculty who used the term. Still, one wonders why the NYT would load the decks against undocumented migrants by associating with them a term that symbolizes the singular moment when LGBT folks publicly registered their sexuality. “Coming out” to others about being gay, or bi, or trans is a unique moment, and to “borrow” it for another charged issue sets up the field against undocumented migrants. This is not a neutral way to introduce the issue.

So why does the messy vitriol and rich, creamy idiocy of Americans continue to surprise me? Probably because I’m an overwhelming optimist and think that if people are given information that counters what they think they know, they will somehow change their minds. First mistake of the day, and I haven’t had my coffee yet.

I try never to read the comments sections of incendiary issues like these, but it’s a bit like finding porn on the tube: so lurid, and yet so hard to stop watching. The comments section attached to this roundtable read as if they were written by the gay (and straight) and liberal (if their self-identification is to be believed) Daughters of the American Revolution and the Minutemen:

(I’m paraphrasing) I’m gay, but I’m against illegals…I’m gay, but there was nothing I could do to change that. Illegals, on the other hand, could….the children of illegals know they’re doing something wrongThe Constitution is…get ready, wait for it…for CITIZENS. WTF?

So…umm, Black Slaves were doing something wrong by being slaves? Women who wanted the right to vote were evil beings, because the Constitution didn’t count them as citizens? Even the very same GLBT (again, if their self-id is correct) folks railing about “illegals” on the pages of our very own version of Pravda have so conveniently forgotten that their very presence was considered criminal until—well even now, in some states, their sexuality is STILL criminal.

Really, watching so-called liberals who have been the target of legal persecution now cloak themselves in self-serving double-standards is like watching Wolf Blitzer pretend to be a hard-hitting investigative reporter: grotesque and fascinating all at once. I keep forgetting that being liberal is not even closely connected to being progressive. Mistake #2. And let’s stop pretending shall we? Gay, lesbian, trans, or straight, these commenters are not just railing about undocumented migrants, they are simply anti-immigrant. No, just stop protesting. Let’s engage in a thought experiment, shall we?

They should stop cutting in line. They should apply legally, like the millions of others who did. Please. Suppose, by some miracle, the gods magically turned the members of Congress into un-selfserving, moral beings, and that they passed a law that opened up the borders to all migrants who wanted to enter, you’d stop bitching? Really? You’d suddenly turn around and say…”Well, I’m so glad that Latinos can now migrate here legally. It’s wonderful to see the rich additions of so many Mexican migrants to our country.” Please, just stop hiding behind the veil of legality; just say it: By passing the buck to Congress, you’re indicating that you’re pretty happy with the status quo.

I keep forgetting that being a target of persecution doesn’t make one free of hypocrisy. Mistake #3. Just look at Israel’s policies toward occupied Palestine, or genocidal tendencies of the religious dissenters who founded the American colonies toward the Native Americans. Gay and straight liberal denizens who object to “illegals” (sure, we’ll pretend that it’s just about undocumented migrants for a minute), could use some history lessons, not to mention lessons in conceptual logic. To paraphrase that famous moral thinker, Forrest Gump, legal is as legal does.

Here are some interesting facts about legality:

Laws are made by human beings (originally this meant white men with power; now men and women– white or otherwise, straight or gay–with power). That means laws are based on the (unreliable and varying) emotions of men and women in power (In philosophy, we like to pretend that this is called “rational thinking). And that means laws are almost always self-serving, designed to protect those with privilege (and that includes you, my LGBT anti-immigrant neighbors). Recall

The Treaty of Guadeloupe Hidalgo, which annexed parts or all of California, Texas, Arizona, New Mexico, and Colorado, and several other states from Mexico.

The Black Codes, which made it illegal for Black Americans to be found without an employer (this is the original anti-loitering law, fyi), among other things. These are some pretty heinous laws criminalizing ex-slaves.

Bowers v. Hardwick, which ruled that a Georgia sodomy law was constitutional). Umm, btw, sodomy is still illegal—if you’re gay—in Kansas, Texas, Montana, and Oklahoma. And illegal for everyone in the rest of these states.

The boundary between legality and illegality changes constantly, as we know. It is true that we’ve had continuous prohibitions against migrants since the mid-1700’s. But those restrictions have ebbed and flowed—often because of the victory of racist fears rather than because of any real danger: The Chinese were the target of exclusion laws in 1882, after the US had finished exploiting them to build the TransPacific railroad. Japanese laborers were excluded in 1906 for similar reasons. In 1901, Samuel Gompers, the president of AFL and still today the hero of many unions, championed the restriction of all Asian migrants in order to strengthen support for white workers. Similar restrictions were applied to other Asian, African, and Hispanic groups throughout the 20th century. No, I’m not putting up links to all of these examples. Read some history, or take an Ethnic Studies class. Unless you’re in Arizona, because ignorance is legally championed out there. Whoo-hoo.

Among the comments from folks self-identifying as gay and opposed to undocumented migrants in this country was a remark about how one can’t help being gay. As we know, this logic has been debated for decades (including by feminists and various celebrities who identify as gay or bi).

Regardless, let’s talk about what is natural, since that’s really what it means to insist that one doesn’t have a choice of being gay or straight. It’s pretty natural for human beings to have a survival instinct, or at least to avoid being killed (do I really need to provide evidence for this? Just watch any Youtube footage of tourists being attacked by sharks.  Or WikiLeaks footage of Iraqi civilians running for cover as bombs are dropped on them). Given the US’s imposition of NAFTA and various nefarious drug interdiction and money-lending policies on Mexico, and the subsequent decimation of its internal safety-net and infrastructure, it seems pretty natural to do whatever is necessary to keep oneself and one’s family alive. Is it any wonder then, that despite the remarkable, ludicrous attempts by the US to build a border, to assign hundreds (thousands?) of Border Patrol agents, to make life insufferable for border-crossers, that Latinos—or folks of any descent who are suffering poverty, persecution, war, drug wars–are willing to risk life and limb in an effort to ensure the survival of themselves and their families, let alone live decently?

Now, I agree that “coming out” is an inappropriate term to appropriate for the question of whether undocumented migrants should publicize their status, but let’s not have that detract us from the question at hand, namely whether taking such a risk will be beneficial, and perhaps, enable people to sympathize with them.  That is a genuine question, but one that needs to be decided by folks who are in the precarious position (and sympathetic lawyers).

In the meantime, let’s stop pretending that because migrants have entered this country at this particular moment, they’re somehow committing a grand moral travesty. They are doing what any of us would want to do, if faced with the choice between certain death or immiseration or an alternative somewhat less worse. “Illegality”—criminalizing people–is a matter of the moral preferences and whims of the privileged, not of human beings trying to survive. So, please stop insulting me with your insistence that we have to abide by the “rule of law.” Laws can be changed. Idiocy, on the other hand—well, I’m not so sure.

Dharun Ravi, Hate, and Race: Reflections, Part 2

My thoughts continue to turn to the Dharun Ravi case. An important question has emerged on Twitter sites and other blogs, namely that of race. It is a difficult issue to unravel. One wants to avoid the danger of pitting race against sexuality in a faux competition about which is the more urgent category. I can’t help but wonder—not only about the “brown” question, but about the implications of his court conviction for that question. For Ravi, whose family migrated when he was younger, his conviction leads to the possibility that he will be deported (he has already had to surrender his passport, although this may have been because of the fear that he might have tried to flee the country before his trial). But few news pieces have mentioned the race question.

It is a barely known fact that hate crimes charges, once thought to be important for the prosecution of crimes against vulnerable populations, are extremely destructive  because they are used most viciously against vulnerable populations. Pooja Gehi, of the Sylvia Rivera Law Project has pointed out that hate crimes convictions affect more populations of color than white or non-minority populations, and that for this reason, they are opposed to the use of hate crimes charges for convictions. Again, I write this not to exculpate Dharun Ravi, but to ask the question about the implication of such an extreme charge against a young man of color. There is no doubt that the Ravi’s actions were extremely hurtful and painful for Tyler Clementi. Still, it is important to note that Ravi was not charged in his death.

Let’s be clear here: the grounds for prosecution in a hate crime are ambiguous. One must prove that the actions were based on the prejudice against the identity of the victim, i.e. that someone was killed, maimed, intimidated because s/he was gay, black, transgendered. But it is, in many ways, an incoherent logic. It is not often possible to distinguish violent aggression from prejudiced aggression. It is not often possible to distinguish hatred of the victim based on her particular features from general identity categories. After all, most crimes are based on the identity of the victim. Most rapes are perpetrated against victims known by the perpetrator; many convicted murderers knew their victims. So, the thing that distinguishes a hate crime from an “ordinary” crime is the category of vulnerability that the victim fits into.

But as the Sylvia Rivera Law Project points out:

Our penalties are harsher and sentences longer than they are anywhere else on the planet, and hate crime laws with sentencing enhancements make them harsher and longer. By supporting longer periods of incarceration and putting a more threatening weapon in the state’s hands, this kind of legislation places an enormous amount of faith in our deeply flawed, transphobic, and racist criminal legal system. The application of this increased power and extended punishment is entirely at to the discretion of a system riddled with prejudice, institutional bias, economic motives, and corruption.

I draw on SLRP’s statement to point to the ways in which hate crimes charges are dubious grounds to prosecute Ravi or to find justice for Clementi, particularly at a moment when spying is part and parcel of the air that we breathe. Should Ravi have known better than to spy? Yes. Was what he did hurtful? Yes. Is it a “hate crime”? I’m not sure. Ravi’s actions might be better described as violating privacy, as bullying or intimidation. But to describe his actions as violating privacy raises the question of how what he did is different from the milieu that the state advocates. To describe his actions as bullying prompts the question of how to charge him (there are, as far as I know, few laws on the books against bullying). To describe his actions as intimidation might not have obtained as harsh of a sentencing as “hate crimes legislation” will. Were they homophobic?  Most likely. But I’m not sure that the link between homophobia and “hate crime” is an obvious, simple, or correct one.

I am also troubled by the implications that such a conviction has: The court could potentially deport him back to India, a country where he has family but few friends and virtually no ties. There is something perverse about deporting someone who has spent most of his life in the United States, as if it were his country of birth. The harsh penalties for migrants who make errors that are post-facto considered crimes is remarkable, but perhaps not surprising in this age of xenophobia. Had he been a US citizen, Ravi might have had to serve prison time (and perhaps he still will), but he would be—presumably—released eventually to a community that knew him and would support him. Clementi’s state of mind may have been fragile, and yet some of his actions were surprising—even after discovering that he was spied on by Ravi, and after asking for a room change, he asked for privacy in their shared room again, and he again invited his friend back to spend time in their shared room, even though he was already aware of Ravi’s predisposition to spy on him. It may be precisely these questionable actions that influenced the prosecution not to attempt to charge Ravi in Clementi’s death.

Now, having considered the harshness of the penalty for Ravi’s actons, I also want to point out one detail that must be emphasized: from most descriptions of Ravi, he is part of that class of human beings that we would categorize as assholes. They are narcissistic, shallow, thoughtless, unconcerned about others and ungenerous, often mean and nasty, among other characteristics. Ravi’s actions were…assholish. But were it a crime to be an asshole, our prisons should be even more jam-packed with white, wealthy folks: bankers, presidents, legal advisers, and former secretaries of defense, of state, attorneys general. This is not to say that our prisons should not already be holding these folks, after convictions of many crimes (just refer back to many, any, of my columns). But being an asshole is not equivalent to having committed a crime.

In fact, as I have argued less explicitly, this is precisely what the political and legal culture of the last decade has engendered, through an emphasis on technologies such as Facebook, MySpace, email–and an emphasis on the ubiquity of surveillance—electronic surveillance, and the combination of the two in the form of Reality TV: from Survivor-like shows, to reality TV shows that fetishize idiocy and stupidity (I don’t even know the names of them, but I believe “The Bachelor” and its female heterosexual equivalent, and the “wife-swapping” show are among them), and then the celebrity versions of “The Real World,” with Whitney Houston et al., The Osbournes, the Bachelor celebrity-style with Flayva Flav, as well as the show with the English “Supernanny” and now another with an African-American nanny). Needless to say, these shows glorify and valorize the cultivation of assholish traits for our viewing pleasure–and most importantly–for corporate profit.

But as importantly, they also perpetuate racism, homophobia, patriarchy, indentured servitude and Aunt Jemimah stereotypes, and prostitution in all but name. (WIFE-SWAPPING?) Seriously. Western liberal feminists point to Muslims as having questionable marital practices. So what does it mean that millions of viewers tune in to watch—-American, Christian or Jewish–families swap their wives and mothers? And that heterosexual couples–men and their wives–APPLY to be on these shows?

So it is that I wonder about the cultural and political acceptance of surveillance on corporate television shows, and the sheer rage and indignance against personal incidents of surveillance, as in the Ravi case. It is interesting–and perplexing– to come back to the dichotomy between those don’t want to be surveilled (interpreted as those who have something to hide) and those who are ok with having their all their moves monitored).

In France, where I write this column, street corners, the hallways of hotels, the lobbies and libraries of schools—all have surveillance cameras, electronic keys to monitor when you enter and exit your room, monitors that show whether your room lights were left on, etc. And France, too, has its own version of intimidation of North Africans, Muslims, and migrants in general. After the latest dust-up about whether France’s public schools were serving halal meat to unsuspecting non-Muslims (Egads! We all should be so lucky), a charge made by France’s right-wing presidential candidate Marine Le Pen, President Sarko–in his ongoing attempts to abscond with Marine Le Pen’s right-wing proprietorship–promised to arrest anyone who visits fundamentalist Islamic sermons on the internet, limit immigration by half, and cut benefits for legal immigrants.

Surveillance then has become part and parcel of the air we breathe. It is rapidly normalized. At what point then, do we decide that one man’s actions are a hate crime, while another’s are an act of leadership? Perhaps we need to take seriously the Sylvia Rivera Law Project’s point that hate crimes are a category that are deployed against folks of color more than against white folks. Hate crimes are suspiciously like other legal categories, like “terrorism,” that the state creates and deploys only against certain targets. As I argue ad nauseam in my book, the state—the “law”–does so to manage its own population, to control and domesticate its residents by criminalizing them for engaging in those very same practices that it (the state) uses to terrorize the segments of its own constituency.

Homophobic Harassment, Self-Deportation, and Surveillance

The New Yorker ran a thoughtful piece by Ian Parker on the suicide of Tyler Clementi, a gay Rutgers University freshman who committed suicide in the fall of 2010, sometime after he discovered that his roommate, Dharun Ravi, had used a webcam to spy, and invite a public-spy-in, on Clementi’s encounter with a male-lover in their shared dorm-room.  The article, relying on electronic records from emails to tweets, suggests that there may be an ambiguous link between Ravi’s spying and Tyler’s suicide.  It is not clear that the spy-in happened, nor how disturbed Tyler was over the news that he was being spied on, but it was clear that he was aware that his roommate spied on him, however briefly.

Ravi stands on trial for, among other things, invasion of privacy (sex crime) and bias intimidation (hate crime). Regardless of whether Ravi’s actions can be closely traced to Clementi’s suicide, Ravi is—even if his own accounts are to be believed—still culpable for harassment and extreme violation of his roommate’s privacy.

Clementi, who had come out as gay to his parents only three days before he began at Rutgers, doesn’t reveal–in his electronic records–a level of emotional devastation  that might be consistent with his decision to commit suicide. But I can’t help but wonder about the psychic devastation that Clementi felt upon discovering that his intimate relationship was subject to surveillance, public spectators, and public mocking.

A few days ago, I was listening to a story on This American Life (#456, Reap What You Sow) about the concerted campaign to induce undocumented migrants across the country, but especially in Alabama, to self-deport. Reporter Jack Hitt discussed the strategies of Secretary of State of Kansas, Kris Koback, to induce “self-deportation.” Koback is considered the “mastermind” of “attrition through enforcement” throughout the country. Kobach is also the proud creator of the National Security Entry-Exit System (NSEERS), which is based on legal precedents that were used to detain and hold citizens and migrants of Japanese descent during the second World War, among other populations. According to a 2004 report on Special Registration by the Asian-American Legal Defense, through NSEERS, the Bush Administration rounded up over 82,000 Muslim men in the aftermath of the September 11 attacks; over 13,000 were put in deportation proceedings.  After that wildly successful anti-immigration maneuver, Koback turned his crafty mind and overpriced education to other issues:  he has helped author the anti-immigrant legislation in Pennsylvania, Missouri, Texas, Arizona, and Alabama’s HB 56. He so modestly describes himself as helping states “restore the rule of law.”

Two things to keep in mind: first, the restoration of the “rule of law” doesn’t involve punishing Goldman Sachs or Lehman Bros. investment bankers for squandering away the pensions of career pipefitters, teachers, and nurses, nor lobbying President Obama to cut off their “bailout” bonuses. Rather, it involves the creation of laws that pivot on the intersection of citizenship and surveillance. Koback’s contribution here is to centralize surveillance through the checkpoints of immigration and citizenship: For example, through Alabama’s HB 56, proof of legal status is required for all children entering public schools; birth certificates are required in every business transaction with the state; any citizen may challenge private business owners’ hiring practices as illegal according to this law. This law has also induced Alabamians–illegally–to take HB 56 into their own hands, refusing to conduct private business transactions without proof of papers in grocery stores. Employees at several Wal-Mart stores across the state refused to allow one migrant to receive a Moneygram from her mother without proof of legal status, even though such proof was neither part of the law nor store policy. Other migrants were told they wouldn’t be paid for work they had already done, or that they would no longer be allowed to rent their apartment, because these acts would be considered engaging in “illegal contracts.”

One migrant’s daughter was enrolled in a Birmingham, AL public school, where there has already been a conversation about what would happen if their parents are picked up by Immigration and citizenship enforcement (ICE): Their teachers have told them that they would be fine because they were American citizens; needless to say, that conversation terrified those kids even more than they already were.  Moreover, we know, according to ColorLinesShattered Families Report that they will NOT be fine. In fact, the undocumented parents of US born children may very well be rounded up during a routine traffic stop, or a routine grocery store purchase, or during an ICE raid conducted in their place of employment, in which case they will be shuttled off to a detention facility and, chances are, deported before they ever have a chance to make arrangements for their children to be cared for by friends or family or to bring them with them, regardless of whether the parents are deported or released. And of course, children without guardians would be considered “abandoned,” and become wards of the state, ready to be shuttled off to a nice white family in need of a child to adopt.

These laws have created a climate where all brown people, regardless of citizenship and national origin, are acutely aware of being monitored: Women have quit their jobs and children have been taken out of school and kept at home, deprived of the chance of a routine life of education, playing with friends and socializing with family and neighbors.  The climate of “self-deportation,” is in fact a climate of self-monitoring, of the acute awareness that one is always being surveyed, that one’s comportment, behavior, existence is always under acute scrutiny. Your own fellowchurchgoers will refuse to shake your hands during the passing of the peace (16:50)  This is what it means to be an outsider. The law prescribes the attitude that “good law-abiding citizens” should take.

As Hannah Arendt points out in 1958,

The administration considers the law to be powerless because it is by definition separated from its application. The decree, on the other hand, does not exist at all except if and when it is applied; it needs no justification except applicability…People ruled by decree never know what rules them because of the impossibility of understanding decrees in themselves and the carefully organized ignorance of specific circumstances and their practical significance in which all administrators keep their subjects. (Origins of Totalitarianism, 244)

[Arendt has another passage that I can’t find on totalitarianism leaves us constantly vulnerable to criminality because offices and the law we are supposed to obey change constantly; a cookie for anyone who can find it].


Before you respond by insisting that “if they don’t want to live like this, they should just go “home,” do remember: those of us who are members of this blighted polity are also subject to the same scrutiny: As Bill Newman and the Mass ACLU have uncovered, the United States is now populated with Fusion Centers. These are local sites which collect, through the marvel of the 2006 Foreign Intelligence Surveillance Act (which your President Obama returned to DC from the campaign trail in August specifically to vote for), yours and my data: collecting your Weight Watchers food diaries online, crossing tollbooths with your EZ pass, pictures of your license plates in cities where you’re not supposed to be at that hour, your encounters on Craigslist and online porn sites, your telephone calls to your best friend and your shrink, your phone sex sessions with your traveling spouse, scrolling through various religious websites for inspirational lectures, online purchases for medications to relieve the symptoms of embarrassing diseases, email interactions with our lefty or radical or….god forbid, Muslim, students.

These Fusion Centers are regional: they collect data locally and then share it with national FBI data centers—this is, indeed, “the rule of law.” It is done legally. And after all, the difference between what is legal and illegal is inscribed through the stroke of a President’s pen on the signature line of a bill. The difference between what is moral and immoral, between privacy and violation of your most sacred thoughts—those too are established through the votes of your Senators and Congresspersons, as well as through the President’s pen. And don’t you worry—it’s a bipartisan effort: Senators Leahy (VT), Boxer (CA), Di-Fi (CA), Pelosi (CA), Gillenbrand (NY), Cantwell (WA), Kerry (MA), Reed (NV), Udall (UT), and the list goes on and one–all voted for the NDAA. The simpler question is, who didn’t vote for it?

The homophobic harassment of Tyler Clementi by Dharun Ravi was a violation of the sacrosanct right to privacy as deployed by an arrogant, young male migrant upon another young, gay, man. Immaturity, narcissism, bias, and youth all appear to be contributing factors in Ravi’s stupid, selfish act. His actions should at least be scrutinized carefully in a court of law, and condemned regardless of the outcome of the trial.  Still, how interesting that the extreme, systematic, violation of a group of vulnerable migrants through the concerted surveillance and coercion of state legislation is not to subjected to the same condemnation. “Self-deportation,” as Mitt Romney describes it, is considered less “messy” and less “expensive” than having officials track down, arrest, detain, deport, and break up families. There are records, evidence, and perhaps culpability in the latter. Self-deportation expresses a similar dislocation and pain, a similar fear, the same kind of harassment, coerciveness, and systematic psychic violence that a sole individual with a webcam does to another single person. Need I extend the argument to Fusion Centers? The difference, of course, is that the psychic violence is much more detrimental when leveled against groups who are already vulnerable, groups who are Muslim, South Asian, Middle-Eastern, brown, angry, dissenting, racially conspicuous.

As worse is the climate in which we have accommodated ourselves to having our everyday habits, routines, foibles, peculiarities, private habits, dislikes, sexuality subject to scrutiny by a state—by 50 states—by The State—that records, organizes, classifies their findings against us, ready to bring out at a potentially threatening moment (threatening to the state) to use against us.

Arendt again (in 1951):

Rule by decree…is superior simply because it ignores all intermediary stages between issuance and application, and because it prevents political reasoning by the people through the withholding of information.

She refers to the totalitarian state as one in which there is no distinction between public and private: both meld into one, and freedom, public as well as private, is an illusion. There is no home to seek refuge in from the public light of day. Even worse, spontaneity—to laugh, love, inquire, explore—becomes even more rare. One’s every move becomes a defensive calculation against potential violence: should I explore this website? Should I speak out? Should I argue with this administrator? He could turn me in—even falsely—and make my life a living hell. Should I go out to buy groceries this morning? Should I let my child out to play? Can I drive to work today? Psychic violence, violations of intimacies, shredding privacy are equally harmful whether done by one or done by a systematic set of laws, officials, networks, warehouses and databases.

I’ll leave with you a last thought by Arendt:

We are not concerned here with the ultimate consequence of rule by terror—namely, that nobody, not even the executors, can ever be free from fear; in our context we are dealing merely with the arbitrariness by which victims are chosen, for this it is decisive that they are objectively innocent, that they are chosen regardless of why they may or may not have done…
In order to establish a totalitarian regime, terror must be present as an instrument for carrying out a specific ideology; and that ideology must have won the adherence of many, and even a majority, before terror can be stabilized…And an ideology which has to persuade and mobilize people cannot choose its victim arbitrarily. (Arendt, OT, 6-7)