Table Of ContentARENDT, AGAMBEN AND THE ISSUE
OF HYPER-LEGALITY
In the Origins of Totalitarianism, Hannah Arendt famously argued that the stateless
were so rightless, that it was better to be a criminal who at least had some rights
and protections.
Inthisbook,KathleenR.ArnoldexaminesArendt’scomparisoninthecontextof
post-1996U.S.criminalandimmigrationpolicies,arguingthatthecriminal-stateless
binaryissignificanttocontemporarypoliticsandyetflawed.Akeydistinction made
today is that immigrant detention is not imprisonment because it is a civil system.
In turn, prisoners are still citizens in some respects but have relatively few rights
since the legal underpinnings of “cruel and unusual” have shifted in recent times.
Thetwosystems–immigrantdetentionandtheprisonsystem–arealsoconcretely
related as they often house both populations and utilize the same techniques (such
as administrative segregation). Arnold compellingly argues that prisoners are
essentially made into foreigners in these spaces, while immigrants in detention are
cast as outlaws.
Examining legal theory,political theory, and discussing specific cases to illustrate
these claims, Arendt, Agamben and the Issue of Hyper-Legality operates on three
levels to expose the degree to which prisoners’ rights have been suspended and
how immigrant policy and detention cast foreigners as inherently criminal. Less
talked about, the government inturn expands sovereign,discretionary power and
secrecy at the expense of openness, transparency, and democratic community.
This book will be of interest to scholars and students of contemporary political
theory, philosophy and law, immigration, and incarceration.
Kathleen R. Arnold teaches political theory and immigration law at DePaul
University. Her research interests are in statelessness, homelessness, and
immigration.
‘A marvelous achievement, Arendt, Agamben and the Issue of Hyper-Legality
uncovers the dark subtext to a democratic idealism that masks brute racism.
Deeply researched and powerfully written, Arnold’s book takes us through a
disturbing but increasingly necessary examination of a country where law has
become handmaiden to the worst excesses of stigma and criminalization.’
Colin Dayan, Professor at Vanderbilt University and author of The
Law is a White Dog and With Dogs at the Edge of Life
‘With a wide-ranging, sophisticated, and critically compassionate exploration of
deep dilemmas within the U.S. immigration, “anti-terror,” and criminal justice
systems, Kathleen R. Arnold offers important insights and thoughtful proposals
relating to sanctuary and due process. This book will be of great interest to those
who seek to understand the realities and (overlapping) fates of migrants and dis-
enfranchised citizens in the United States.’
Daniel Kanstroom, Professor of Law, Boston College Law School
‘Arnolddeftlyilluminateshowthestatemanipulateslawandgeographytofurther
suspend the rights and diminish the personhood of those already on the margins
of membership: prisoners, noncitizens, and immigrants. This timely book is both
anastuteworkofpoliticaltheoryaswellasacuttingpoliticalcommentary onthe
increasing convergence of immigration and criminal law.’
Monica W. Varsanyi, City University of New York
ARENDT, AGAMBEN
AND THE ISSUE OF
HYPER-LEGALITY
In Between the Prisoner-Stateless
Nexus
Kathleen R. Arnold
Firstpublished2018
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LibraryofCongressCataloginginPublicationData
Names:Arnold,KathleenR.,1966-author.
Title:Arendt,Agamben,andtheissueofhyper-legality:inbetweenthe
prisoner-statelessnexus/KathleenR.Arnold.
Description:NewYork,NY:Routledge,2018.|Includesbibliographical
referencesandindex.
Identifiers:LCCN2018001449|ISBN9780815381051(hardback)|
ISBN9780815381068(pbk.)|ISBN9781351211246(epub)|
ISBN9781351211239(mobipocket/kindle)
Subjects:LCSH:Illegalaliens--Governmentpolicy--UnitedStates.|Illegal
aliens--Civilrights--UnitedStates.|Prisoners–Governmentpolicy--United
States.|Prisoners--Civilrights--UnitedStates.|Detentionofpersons--United
States.|Statelessness.
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TypesetinBembo
byTaylor&FrancisBooks
In gratitude to Tara Magner and Sara Wohlleb, who have
each shaped my understanding of immigration in such
important ways and always to Hannah, my beautiful
daughter
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CONTENTS
Acknowledgments viii
Introduction 1
1 Personhood 26
2 Is it Better to be a Criminal than a Stateless Person? Revisiting
Arendt’s Famous Comparison 69
3 Blurring Boundaries 105
4 Democratic Sacrifice and Heroism in the Context of Tragedy 133
5 Blurring Paradigms 155
6 Conclusion: Is it Better to Be a Criminal than a Stateless
Person? 172
Cases Consulted 190
Index 192
ACKNOWLEDGMENTS
In order to keep this text at a manageable size, I have not cited sources widely
but I would like to acknowledge the debt I owe to political theorists who work
on Hannah Arendt, ranging from Mary Dietz to Dana Villa to Jeff Isaac and
many others. The Hannah Arendt Center (run by Roger Berkowitz) has also
been an invaluable on-line resource. I also feel indebted to legal theorists such as
Austin Sarat and Nasser Hussain (who has now passed away) for carving out
intellectual space for the intersection of theory and the study of law. Please know
that if I have neglected to mention someone here or in the body of the text, it
was not for lack of appreciation.
The idea for this project first came about as I was teaching immigration law
and discussing my approach with my student David Bryant, a McNair scholar.
The class is rooted in an understanding of the plenary power doctrine and how
immigration policy has largely been conceived of as a civil system, in opposition
to the criminal justice system. Treating immigration in this manner further
remindedmeofArendt’sfamouscomparisonbetweenthestatelessandacriminal,
as she argued that a small theft would paradoxically give legal recognition to a
stateless person, conferring some rights that a refugee would not have (if refugee
and stateless can be used interchangeably, which I assume is true). I have taught
my class as if Arendt’s comparison were still true and there is enough evidence
that it is – nevertheless, the two systems have converged in the United States
sinceatleastthemid-1990s,evenifthey arealsoseparate.DavidandIdecidedto
pursue this line of inquiry in further depth over the summer, as I became his
faculty mentor for his McNair project. David’s interest was more focused on
prison conditions and reform while mine has been more on immigration, until
recently. Although, we never managed to write anything together, it was this
relationship that propelled my own writing on the prisoner-stateless nexus and so
Acknowledgments ix
I am grateful to David for choosing me as his mentor and for the conversations
and sources we shared. My immigration law students have always challenged me
inthiswayandIamgratefulforallofthem –particularlyinour(failed) effortsto
ask our university to declare itself a sanctuary campus. Thank you in particular to
thefoundingmembersofthepetitiondrive:EmilyHerrmann,EnriqueMendoza,
and Megan Osadzinski.
Ihavealsodedicatedthisbooktotwopeoplewhohavechangedmyintellectual
orientationalmostcompletely:SaraWohllebandTaraMagner.Inanalyzingrefugee
and immigration issues, I have often criticized immigration policy and popular
discourse, drawing on post-structural and intersectional theory. As I have focused
increasingly on the plenary power doctrine, I have grown aware of the bizarre
relationship between courts (and particularly the Supreme Court) and immigrant
or refugee status. When I first met Sara Wohlleb, she was a lead organizer and
minister with CRLN (the Chicago Religious Leadership Network) as well as
initiating a pastoral care program for unaccompanied minors in Chicago. Sara
has asked me to participate in or help with media events, organizing broad
meetings of lawyers and advocates, and in support for church-based sanctuary.
Every time she has given me these opportunities, I have gained an invaluable
grassroots perspective and the sort of legal knowledge possessed by activists,
refugees locked up in detention, or those who seek church-based sanctuary. This
is not the legal perspective used in a courtroom or to draw up formal documents
but rather, knowledge about how to positively act in the small gaps and holes that
remain in the legal system. The growing awareness about police violence in the
city, exposing Homan Square as a torture site, and Black Lives Matter activism
have also broadened conversations about the meaning of “sanctuary” amongst
immigrantadvocates. Ifeel solucky tohave been invitedinto these conversations
and actions. I should add – most importantly – that Sara is a tireless and unflag-
ging supporter of social justice causes, often sacrificing her time with little public
acknowledgment of her work. She is one of my heroes.
LikeSara,TaraMagnerissomeonewhohasdonesomuchgood,oftenbehind
the scenes. As someone with a J.D. who has helped to shape refugee and immi-
gration policy, Tara more recently was a Program Officer for the MacArthur
Foundation’s section on Migration and Policy Research. In this role (and in
conjunction with the Chicago Bar Association) she has invited me to several
meetingstowhichIwouldneverhavehadaccessotherwise.Thesehaveincluded
a meeting at the Chicago asylum adjudication office where Philip G. Schrag,
Andrew Schoenholtz, and Jaya Ramji-Nogales presented their findings regarding
refugee petition decisions and a panel discussion for Shoba Wadhia’s work on
prosecutorial discretion. Each of these meetings has been fascinating and valuable.
Tara has sent links to academic and news articles relevant to my work and has
spent hours in conversation with me, often answering technical questions related
to my work or discussing cases that Sara and CRLN have handled. I am so
grateful for these conversations and the opportunities she has given me. While
