White America Fights for Democracy

As I write these lines, the United States is fighting for the very soul of its democracy. Under dispute is whether their government can forcibly transfer a lawful resident – in this case a Latino with a tattoo – to a forced labour camp in El Salvador without any due process.

For now, the US Supreme Court’s answer seems to be “no”, provided the Latino with a tattoo in question files a Habeas Corpus petition before deportation. The debate is raging on as US commentators decry just how limited this protection can be once one is in the custody of masked ICE snatchers.

Think about it: imagine you are snatched in the middle of the street in Boston and placed in detention today. Tomorrow, you are secretly shipped to Texas, with the intention of deporting you, the day after, to El Salvador. Essentially, the Court’s order means you will need to read your captors’ minds and retain a Texan lawyer to file a writ of Habeas Corpus before you are forcibly transferred to El Salvador. There can be no generalised protection to all Latinos with tattoos right here, right now. Worse even, the government knows Texas judges will likely side with it, stealing the initiative from detainees. As Justice Sotomayor says, this “may have life or death consequences” as those unable to secure counsel or who cannot timely appeal their transfer “face the prospect of removal into the perilous conditions of El Salvador’s CECOT, where detainees suffer egregious human rights abuses” and from where the US government insists it cannot retrieve anyone once they are there.

The debate has been intense. Liberal sectors of US politics feel quite on edge. After all, the threat is very real: Trump has specifically advocated for American citizens to be shipped to El Salvador in similarly unlawful conditions. And not just Latinos. Formerly “safe” groups – particularly white immigrants from Canada, France, and Germany – have all spent days in solitary confinement or in irons for their “mean tweets”, leading to a sharp decrease in foreign travel to the US. Nobody seems to be safe – not even white America. “What if I too”, seems to be the talk in Liberal Blue Sky, “what if I too can be treated like a Latino with a tattoo”. This sense of threat is especially intense when, for the first time in decades, persecution in the US is framed in ideological, rather than racialised grounds – sure, those snatched and disappeared in Columbia and Tufts were Arabs and Turks, but they were targeted not because they were Arabs and Turks, as the War on Terror has so normalised in US politics. They were targeted because they were openly pro-Palestine Ivy Leaguers. And so, “wait a minute!”, the white Progressive mind thinks, “I am also pro-Palestine Ivy Leaguer!”

There is thus something very self-serving brewing just barely under the surface of the urgency with which this fight for US democracy is taking shape – and it is worth exploring further. As the white Progressive elites claw themselves to the bulwarks of due process and fundamental rights and declare that the battle for the soul of America has begun, they also seem to ignore that for many others, the battle for American democracy has been long and unceremoniously lost already – to white America’s thunderous silence.

Can US citizens be assassinated by their government over their political views, without access to judicial review? The answer, it may surprise you, is “yes”. It was 2010 when Nasser al-Aulaqi brought a suit before the US District Court for the District of Columbia to beg for his son, Anwar’s, life. Anwar al-Aulaqi was a US citizen residing in Yemen. He was not a nice guy – having violent views supportive of al-Qaeda. According to the government, in fact, he was a member of a splinter al-Qaeda-inspired group in the Arabian Peninsula (known as “AQAP” in military circles), allegedly training some of their militants.

Under the terms of the 2001 Authorization to Use Military Force (AUMF) Act, which authorised force against al-Qaeda HQ in Afghanistan and its “associated forces”, the government (controversially) claimed that al-Aulaqi’s membership in AQAP made him passible for summarily execution via drone strike, despite him not actually being accused of any concrete crimes. His US citizenship, the government claimed, did not shield him from assassination: “we believe the AUMF’s authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization within the scope of the force authorization”.

The District Court sided with the government by claiming that al-Aulaqi actually had no recourse under US law to challenge his execution because it was a “political question” not subject to judicial review. In Judge Bates’ infamous own words:

“[T]here are no judicially manageable standards by which courts can endeavor to assess the President’s interpretation of military intelligence and his resulting decision—based on that intelligence—whether to use military force against a terrorist target overseas. Nor are there judicially manageable standards by which courts may determine the nature and magnitude of the national security threat posed by a particular individual”.

Anwar al-Aulaqi, a US citizen, was denied detention and prosecution before a jury of his peers and murdered. The conclusion since then has been inescapable: US citizens do not have a constitutional right to challenge their government’s determination that they should be summarily killed. As Nasser al-Aulaqi claimed in his brief, the decision meant that the US President possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state”. The death of US democracy should have therefore been decried over a decade and a half ago. As Opinio Juris’ own, Kevin Jon Heller, tirelessly argued back then, “nothing in the opinion indicates that the executive’s unilateral decision to kill an American citizen inside the United States would be any less a political question”.

But, despite the incredibly high stakes, not much happened. Some negative press coverage and the passionate opposition of progressive academia notwithstanding, Anwar al-Aulaqi’s execution did not provoke the same kind of national sense of urgency as the deportation of Latinos with tattoos to El Salvador. Why? Because the dirty secret of his case was precisely that his last name was al-Aulaqi, that he lived in hiding in Yemen, and that he was a terrorist. He was hated and feared and so received no rights because he was not really human – not like the rest. No one, especially not white America, stopped to ponder “wait a second, what if I too can be treated like a radical cleric in Yemen?” The underlying, unspoken understanding at the time and ever since was that this awesome power to assassinate would only be used against last names like al-Aulaqi and places like Yemen. White America slept soundly and safely that night knowing that the bad guy was dead – whatever the cost in rights. American democracy had not ended for them. As the old adage goes: “human rights are for righteous humans” – and al-Aulaqi was neither righteous nor human.  

This was not the only time that US democracy died for someone other than white America, though. A year later, in Sanford, Florida, George Michael Zimmerman, a Latino businessman down on his luck and with a background of domestic violence, saw a Black young man walking in his neighbourhood. The area had been devastated by the financial crisis of 2008. Impoverished Americans had been accused of several burglaries in the area, with the community growing increasingly suspicious of the town’s African American population. After two burglars broke into a house, and tired of the police’s slow response, Zimmerman volunteered to lead an armed neighbourhood watch.  

The young man Zimmerman saw was Trayvon Martin. A 17-year-old kid walking back home from the grocery store, fatefully wearing a fashionable hoody. Zimmerman’s prejudice was clearly recorded in his 911 call: “these assholes”, referring to the young Black men he was convinced where behind all robberies in the area, “they always get away”. Zimmerman then started chasing Martin, caught up with him, and after a confrontation, shot him to death.

Zimmerman claimed to have killed Martin in self-defence, despite the fact that it had been Zimmerman who chased, confronted and ultimately shot an unarmed Martin. Florida’s so-called Stand Your Ground laws allowed Zimmerman to use “deadly force” if he “reasonably believe[d] that using (…) such force [was] necessary to prevent imminent death or great bodily harm to himself”. In a healthy democracy, the facts would not support Zimmerman’s defence. A person does not have a right to chase someone else while armed and then claim self-defence from a situation they themselves created. There is, therefore, a duty to retreat before using deadly force. Florida law removes this requirement entirely: “[a] person who uses (…) deadly force (…) does not have a duty to retreat and has the right to stand his or her ground if the person using (…) deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be”. George Zimmerman was acquitted of all charges.

Can US citizens be killed by vigilantes? The answer since that infamous trial is “yes”. In fact, a decade later, Kyle Rittehouse, a teenager with an automatic weapon who travelled to Wisconsin to police Black Lives Matter protesters as a vigilante was acquitted of killing two people who tried to disarm him. In an upside-down world turn of events, he was declared the victim of the violent incident he himself provoked with his own vigilantism under the argument that he subjectively feared for his life.

Just like with Anwar al-Aulaqi, though, the underlying, unspoken understanding is that this massive power to execute fellow citizens will only be used against African Americans – the US’ most time-tested “Other”. In fact, in 2016, Philando Castile – a Black man – promptly informed the police officer who stopped him for an alleged traffic offence that he carried a lawfully permitted weapon in his car. He was shot anyway and killed. The police officer who killed him was found not guilty. In 2014, John Crawford III, another Black man, was killed by police in a Walmart for carrying an air rifle that was sold in that very same store. The officers involved were not even indicted. Black self-defence is an impossibility in the United States. And if your fellow citizens and police force can kill you without meaningful remedy, then American democracy does not exist for you either.

The AUMF’s rules on targeted killings and the sprawling proliferation of Stand Your Ground laws all around the country, coupled with a refusal to address systemic racism in police departments, is part of the broader and highly racialised process through which US law has historically taken shape. Liberal theory encourages us to think of the law as a coherent system of neutral rules. But this is not how it has empirically evolved. The law evolves following the interests of those with power – it is shaped by interest groups, billionaires, PACs, lobby groups, actors that seek not the wellbeing of populations, but their own economic benefit.

This was, in fact, Morton Horowitz’s central argument in his seminal The Transformation of American Law:

“During the eighty years after the American Revolution”, he says, “a major transformation of the legal system took place which reflected a variety of aspects of social struggle. That the conflict was turned into legal channels (and thus rendered somewhat mysterious) should not obscure the fact that it took place and that it enabled emergent entrepreneurial and commercial groups to win a disproportionate share of wealth and power in American society”.

In other words, legal evolution does not follow neutral principles, it follows power. And in the US, power is racialised. Thus, while Arab and Afghan Americans can be summarily executed via drone and African Americans can be executed via vigilante justice, no one in their right mind would suggest that the same is true for white Americans. Even if technically speaking the law does allow for a white Texan to be droned while walking to a convenient store for supporting the KKK (a terrorist organisation); this would be seen as preposterous. Texas is “unbombable”; white Texans are “un-assassinatable”, both by the state and vigilantes. Yemen is not. African Americans in hoodies are not. The boundaries of the bulwarks of due process and fundamental rights have long been set up around racialised social norms.

The current fight for American democracy is therefore a fight to keep these racialised boundaries where they are, not lift them altogether. The current sense of urgency surrounding Trump’s policies stems from the risk that people will no longer be persecuted solely on the basis of the traditional racialised grounds. That the constitutional protections guaranteed to people who have thus far been “un-assassinatable” and spaces that have so far been “unbombable” are suddenly becoming less sacred. That white America is now slowly becoming “deportable”, “dissappearable”, and that the continental US will no longer be excepted from the extraordinary rendition rules reserved for the Middle Eastern geographies of the War on Terror. That this awesome power to detain, deport, torture and kill is now no longer neatly divided along racial lines. The colonial boomerang of the US’ racist and imperialist legal system, reserved for the War on Terror and racialised policing, is inevitable and predictably turning inwards.

In other words, what I mean to say is that the real battle for US democracy is not about whether “you” can be shipped to a Salvadorean gulag, but about whether white America will be able to radically reconceptualise their vision of what it means to be “America”.  Trump, and more exactly, Trumpism, have one such vision. They are actively pursuing a fascist nation that expands and entrenches the US’ undemocratic spaces right into the heartland of Liberal America. To fight this vision, to defeat Trumpism, the US’ organised opposition needs more than simply defeating Trump and force him to hold elections in four years; it needs more than going back to the status quo of 2024. It needs to fully reconceptualise what America is, and accept that its racist, colonial, imperialist present needs radical, foundational, democratic change.

Alas, despite the encouraging politics of student encampments, there does not seem to be a big enough tent to support this kind of movement. The US opposition may be successful at keeping Trump from becoming the country’s dictator, but then all that will happen is that the racialised and imperialist state of affairs of US Constitutional and National Security Law will go back to its pre-existing racialised borders, where the Other can be executed by drone or vigilante, while the Progressive white majority goes back to its own siloed democracy, content that it won its battle for the (its) rule of law.