Richard K. Sherwin is the Wallace Stevens Professor of Law Emeritus at New York Law School. His scholarly writings explore the rich and varied relationship between law and culture, focusing in particular on legal narrative, visual communication, the legitimation process, and the genealogy of law’s sovereignty.
Tyranny’s objective is to render the tyrant’s power absolute. Under these conditions, the rule of law becomes a dangerous rival to the tyrant’s will to total power.
Donald Trump’s war on migrants facilitates unmitigated power by relentlessly transforming regions of the nation into internal zones that operate as if they were outside national borders. These are, in effect, wild (‘law-free’) zones outside the law that require constant patrolling.
When a tyrant’s militia (such as Trump’s Homeland Security forces) occupies these zones, their power is unrestrained. They can shoot and kill peaceful protesters. They can enter homes in violation of Fourth Amendment protections. And they can target and seize people based on the color of their skin.
Since ‘illegals’ by their sheer presence determine lawless places, the only way to secure the border is to rid the nation of ‘illegals’. The task of state propaganda in a tyranny is to make people see ‘illegals’ – (‘the enemy within’) – everywhere. That way, border patrol can take place everywhere.
In America today, it’s not just ‘illegal’ migrants who live beyond the border. It’s anyone who protects them – ‘domestic enemies’ who dare to stand in the way of the administration’s efforts to police the abyss. Enemies range from the ever-elusive left-wing ‘antifa’ conspiracy to “radical Marxist” political opponents, journalists, intellectuals, judges, prosecutors, election officials, and citizen-protestors. The catch-all term “domestic terrorists” is useful, not least because there is no such legal category and its amorphousness allows for constant adaptation and expansion.
Domestic terrorists, of course, need to be constantly surveilled. That is why Immigration and Customs Enforcement (‘ICE’) is being equipped with state-of-the-art surveillance technologies. These include biometric trackers (such as BI2 Technologies’ iris-scanning tools and Clearview AI’s facial recognition systems), Motorola Solutions’ license plate readers, L3Harris’s cell phone trackers [also known as ‘Stingrays’]), Skydio X10D’s and General Atomics’ highly sensitive surveillance drones, as well as advanced forms of spyware – such as Paragon Solutions’ phone hacking technology and Palantir’s AI-driven systemic intelligence systems (like its ‘Enhanced Leads Identification & Targeting for Enforcement’ tool, which helps ICE map out deportation targets by drawing upon massive troves of government data, including dossiers with names and addresses from the Department of Health and Human Services).
To qualify as an ‘illegal’, all you have to do is enter the space already occupied by other ‘illegals’. Protecting ‘illegals’ becomes the functional equivalent of holding the border open. When you enter the space ‘illegals’ occupy, it’s like self-deporting. By entering that zone of lawlessness, you effectively forfeit basic rights.
The more amorphous the category of ‘illegals’ becomes, the greater the number of people who can and need to be detained, deported, and perhaps killed. That is why Trump needs so many new detention centers. Detention centers prove the threat is real.
Domestic no-man’s-zones swallow the rule of law. When they come to exist everywhere, law will exist nowhere. This is what happens when the state of exception becomes the norm.
As America’s institutions of freedom (the courts, Congress, law enforcement, the press) collapse into the abyss, one safeguard remains. That safeguard is the ultimate source of legitimate power, namely, the people.
When people protest against relentless and omnipresent border patrol by lawless militias, they are reclaiming zones of freedom. In such zones, “Homeland Security” appears as the occupying force of terror that it is. Only the people, ordinary citizens, like the brave Minnesotans marching against ICE’s brutality, can demonstrate the illegitimacy of border patrol’s, and, by extension, the Trump administration’s, claim to power.
Within citizen-liberated zones of freedom, ‘illegals’ may be seen for what they truly are: the scapegoats needed to demonstrate the fearsome scope of a tyrant’s power. The fear and anxiety that ‘illegals’ feel model the state of mind in which tyrannies flourish. Banishing ‘illegals’ is held out by the State as the sure path to banishing fear and anxiety. But that is a false hope. When it comes to tyranny, the proliferation of ‘illegal’ others is the only surety that remains. How else can power be totalized?
The American people’s First Amendment rights to freedom of speech and public assembly in the service of peaceful protest must be strenuously exercised. Wherever this occurs, zones of freedom persist.
If history is any guide, resisting the militias will become an increasingly risky business. This is the price of freedom.
Resisting the lawlessness of state agents constitutes resistance against the hate and cruelty and violence on which those agents thrive. Lovers of freedom, therefore, must embrace the stranger in our midst. For that stranger might be any one of us. And any one of us, as those who love freedom also know, is of incalculable worth.
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