Book Review: Islands of Sovereignty: Haitian Migration and the Borders of Empire

Post by Peter Mancina. Peter is Research Associate in the Centre for Criminology and Border Criminologies, and Visiting Scholar at the Rutgers Law School Center for Immigration Law, Policy, and Justice. His work studies "sanctuary city" and "sanctuary state" policy implementation and the future of immigration law enforcement. He may be reached at pm830@law.rutgers.edu

Review of Islands of Sovereignty: Haitian Migration and the Borders of Empire by Jeffrey S. Kahn (University of Chicago Press, 2019).

Jeffrey Kahn’s Islands of Sovereignty is a magnificent exposé of the legal edifices, battles, and narratives, along with federal executive actions and immigration control strategies that from the 1970s through the 1990s transformed governance and immigration policing in the Caribbean seascape.  According to Kahn’s account, the Caribbean transformed from one relatively freely traversed by boats of Haitian asylum seekers aiming for South Florida to one systematically patrolled by the US Coast Guard and Immigration and Naturalization Services (INS) with the aim of “interdicting” Haitians before they could make it to US land. Based on legal jurisdiction, asylum seekers could use a myriad of US court processes to make appeals and forestall their returns. This story accounts for the birth of interdiction as a method and solution not only to refugee crises that the nation viewed as a threat upon its sovereign integrity, but which satisfied two dualling impulses at the heart of US liberal constitutionalism: the impulse of the sovereign state to flex its will when threatened by perceived external threats to its integrity on the one hand, and on the other, the impulse to reign in that will by law, to restrict it with reason and judgement, forestalling the possibility that such sovereign will become totalitarian, despotic, and ultimately entirely “decisionist.” It is also the story of how Guantanamo Bay transformed from a less important naval outpost into the prison-camp that it is today.

Following neoliberal political economic reforms under “Papa Doc” Duvelier and his son “Baby Doc” Jean-Claude in the mid-1960s and 1970s, and the gruesome political violence that they used to enforce the new order, vast numbers of Haitians fled by boat to Southern Florida where the INS had, until the early 1970s, exclusive control over what Kahn calls the “entextualization” process—the entire process in which an asylum claimant’s claim is recorded in documents and how it is interpreted to make an asylum decision.

For most of the 1970s, Haitian refugees successfully used the American courts to contest INS asylum decisions: to first establish the authority of court judges to be able to review the asylum cases; second, to review the content of the asylee’s claim; and third, to rule on whether the INS should be able to return claimants to Haiti. INS screeners had made only cursory notes during asylum claimant interviews and made their decisions on the basis of predominating agency assumptions that claimants were merely economic migrants rather than legitimate refugees. Haitian claimants and their lawyers used legal action as a counter-tactic to participate in the entextualization process, to provide more ample, detailed accounts of their lives in Haiti and why they were seeking asylum. Through the courts, Haitian claimants were successful at staying their removals, frustrating the INS’s intent on disallowing Haitians who they perceived to come from a hygienically unsanitary and HIV/AIDS ridden backward country, into the US. This legal tactic was perceived as an encroachment of the judiciary into the executive branch’s sovereign will to defend its borders.

Following a new wave of Haitian boat migration, and the continued success of the asylees’ lawyers to stay their returns, in 1981, the new US President Ronald Reagan’s administration sought to disallow Haitians’ entrance and asylum in the US by denying them the opportunity to touch down on land in South Florida, where courts had jurisdiction to stop the INS from returning the Haitians. The administration changed the asylum bureaucracy’s “architecture”, as Kahn refers to it, moving asylum screening from land-based detention centers in South Florida, onto US Coast Guard boats—“cutters”—by initiating the Haitian Migrant Interdiction Operations (HMIO) program. Cutters patrolled various zones of the Caribbean that they mapped based on routes that Haitian boats were taking and would “interdict” them, taking the passengers onboard the cutters and detaining them. The coast guards interviewed people onboard about their asylum claims, screened them for HIV/AIDS, decided on accepting or denying their claim then and there, and returned them to Haiti.

Placing the asylum screening process out in a sea beyond US national sovereign territory and the jurisdiction of US courts, allowed the INS, from a legal standpoint, to take back total control of entextualization, asylum decision-making, and removal, without the possibility of appeal by the asylum applicant or a stay from a judge.

Kahn described this as liberal sovereignty’s will regaining the freedom to make its decisions in what the Supreme Court called the “vast external realm” according to its own policy (executive orders and guidance documents from presidential offices), without the incumbrances of the judiciary getting in the way. This turned the boats into floating, mobile detention centers, HIV/AIDs screening centers, and asylee processing centers.

The cutters were the core of an institutional immigration control assemblage, while Guantanamo was the land-based extension, coming into use at certain times and being repurposed for other initiatives at other times. Such an approach reorients our assumptions of national “state spatialization” which takes territory as primary and ocean and seascapes, or as Kahn describes them, “liquid terrains”, as “out there” or secondary. Kahn also sees this as an instance of a sovereign nation extending its virtual size and spatial management into foreign waters by policing mapped zones.

Significantly, Kahn recognizes the utility of the US border from a legal perspective as one that demarcates the jurisdiction of the courts and the territory. However, the border not only fails to restrain administrative bureaucracies like the INS but actually frees them and legally empowers them to act according solely to their own prerogatives when such bureaucracies operate beyond the territorial border. Then, when taking sovereign action on decisions about allowing or denying entrance of foreigners into sovereign space, in this vast expanse, the closest thing to national territory that these foreigners might be touching is the deck of the Coast Guard cutter, and bureaucracy exercises sovereign power then and there. This bordering practice in a way enacts not the territorial border or the jurisdictional border of the courts, but a virtual water-based extension of it—a “pointillist border”—in a seeming volcanic eruption in the sea. This is an eruption of sovereignty and a type of transubstantiation of the water and the cutter’s deck into a virtual border at that very point in that moment. The border then is theorized not only in juridical, jurisdictional terms, or in territorial terms for instance, but in a maritime and mobile manner as well, showing the different modalities of how borders can be manifested seemingly in reference to existing legal and territorial borders.

Islands of Sovereignty continues its history in the 1990s after Vice President George H.W. Bush had overseen the INS in 1989, augmenting the interdiction program and converting major sections of Guantanamo Bay into the central asylee detention and processing center to stop the biggest wave of Haitian migrants to date. This effectively moves the asylum decision process from the cutters back onto the base.

While it is hard to find flaw with Kahn’s thoroughly documented genealogical account, I’d like further clarification from him about his theoretical characterization of the eruptive genesis of the US border and sovereignty in the sea. Is not a pointillist perspective on territory-based borders a fetishization of the essence of the territorial border as existing in potentially all “bordering acts” of the state, whether on land, on sea, in the sky, or in outer space? It occurs to me that such an approach creates a kind of “pantheism” of the territorial border wherein the US border (which is territorial) is in all things that references the nation, creating a copy of the territorial border, with the potential for its infinite multiplication. Should we not instead see the more essential bordering act of the cutters as a separate aqueous sea border species of the genus “US national border”?

Kahn has rightfully called our attention to this case as an instance of the illumination of something interesting—the disjuncture of the ontological reality of the US national border as territory-plus-spaces-of-national-exclusion-beyond-territory and the territorially demarcated legal national border. Kahn cleverly shows us that sovereignty not only re-makes its relation to legal liberalism, but has also created a new land-sea state formation of the US nation itself. This book is a wonderful contribution to our knowledge of the history of border policing and legal history, and is highly recommended for students, scholars, and practitioners in the fields of history, legal studies, migration studies, criminology, anthropology, and critical theory.