What’s wrong with this picture?

I can think of a few things. Why only 5 million? The government estimates that over 11 million persons live in the United States without its “permission.” Obama presumably is focusing on the 5 million because he does not want to see them forcibly separated from their children. Good for him. That’s a worthy motive and objective. So why didn’t he do this years ago? Many families were split up while he dithered and played politics, falsely claiming he had no executive authority to defer deportations.

Moreover, his order does not apply to the parents of the “dreamers,” so he reserves the power to break up those families. Shame, Mr. Obama. All persons without papers should be protected from deportation, for reasons I will soon make clear if they are not clear already.

Also, the deferral of deportations is only temporary. But I guess we can’t blame him for the fact that the next president could vacate his executive order and deport these innocent people.

Another thing wrong is that Obama thinks permission to work is his to bestow. In terms of natural law and objective morality, no one needs permission to engage in production and free exchange. Governments maintain elaborate machinery to keep people from doing those things without permission (licenses and permits), and they have the guns to enforce it. But this power is illegitimate. It doesn’t matter that a majority of the people’s misrepresentatives say otherwise.

It’s admirable that Obama will remove this one barrier to industriousness. I guess he’s doing what he can under the circumstances, but of course he does not favor repeal of the entire rotten immigration apparatus that makes special permission necessary.

We know he would not favor wholesale repeal because he says his order will also increase “border security.” “Border security” is a term that camouflages the gross violation of individual rights entailed by immigration control. Like his political opponents, Obama is a control freak, even if occasionally he supports loosening control.

Most people have a different list of complaints against Obama’s executive order. Republicans and even some Democrats oppose Obama’s unilateral action. It’s not so much the content of the order, they say, but the process. The legislature is supposed to legislate, and the executive is supposed to execute, so they accuse Obama of unconstitutionally legislating and failing to execute. They remind us that Obama previously said he has no authority to do what he’s now doing. Administration people say he is guilty of no contradiction because what he’s doing today is different from what he said he had no authority to do three years ago. His political opponents respond with the equivalent of: “Flapdoodle.” (Why do Republicans and conservatives have no problem with unilateral executive authority to murder people?)

I discount everything both sides are saying. In politics people say — usually with great conviction — whatever is expedient. Time horizons are short, and they have little incentive to strive for consistency, which they surely regard as the “hobgoblin of little minds.”

I also wouldn’t be too concerned with “process.” The language of every law, including the Constitution, is subject to human interpretation, and therefore the rule of law in any political system we observe today is really the law of men and women. As I’ve written before,

It’s not as if the proper interpretation (whatever that may be) can be hardwired somehow to guarantee that legislators, presidents, and judges will act in certain ways, or that the public will demand it. At every point people will be making the interpretive decisions, including the decision over which interpretation is right.

And as Ludwig Wittgenstein wrote, “Any interpretation still hangs in the air along with what it interprets, and cannot give it any support.”

In “The Myth of the Rule of Law,” legal philosopher and libertarian John Hasnas argues that since no legal language is exempt from interpretation, law can’t be determinate. Another legal scholar and libertarian, Randy Barnett, agrees, at least to some extent. He calls law “underdeterminate.”

Predictably, then, as Hasnas writes, there is inevitably a host of

incompatible, contradictory rules and principles…. This means that a logically sound argument can be found for any legal conclusion…. Because the law is made up of contradictory rules that can generate any conclusion, what conclusion one finds will be determined by what conclusion one looks for, i.e., by the hypothesis one decides to test. This will invariably be the one that intuitively “feels” right, the one that is most congruent with one’s antecedent, underlying political and moral beliefs. Thus, legal conclusions are always determined by the normative assumptions of the decisionmaker.… [I]t is impossible to reach an objective decision based solely on the law. This is because the law is always open to interpretation and there is no such thing as a normatively neutral interpretation. The way one interprets the rules of law is always determined by one’s underlying moral and political beliefs.

“The fact is that there is no such thing as a government of law and not people,” Hasnas concludes. “The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion.” (Also see Hasnas’s “The Depoliticization of Law” [PDF].)

No wonder that one day Obama can find no authority to defer deportation and loads of authority the next. (Although, my friend the libertarian columnist Shikha Dalmia says his current position is has a strong basis in the immigration law. So does Cato’s Ilya Somin.) No wonder Obama’s Republican opponents can insist they are right.

Rather than fall into that thicket, let’s get Lysander Spooner on them all. What counts is liberty, and lex iniusta non est lex — an unjust law is not a law. As Spooner wrote Grover Cleveland in 1886,

Let me then remind you that justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by any human power.… It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law.

So if a president unilaterally acts to protect someone’s liberty, I say bravo, because he is acting according to the natural law. And if a president acts, whether unilaterally or in concert with Congress, to violate liberty, then that president is in violation of the natural law and the people should respond accordingly.

Government interference with the right to move is a violation of the natural law and of individual liberty. It does not matter that such interference was enacted by a majority of both congressional chambers and signed by a president. It is illegal, and even an isolated refusal on the part of a president to enforce an unjust “law” is to be applauded.

(I hope no one thinks the principle of trespass furnishes justification for government control of immigration. The claim that free immigration constitutes “forced association” is nonsense. In a freed society, newcomers would be welcome on the property of many people looking for fellowship, customers, tenants, and services, as well as on nonstate public property.)

I know better than to think that Obama’s executive order is the start of something big. But that is no reason not to rejoice. Because of his action, some human beings won’t be torn from their children by jackbooted immigration thugs. I can’t see how that’s not a good thing.

Parlando con americani, ho notato che molti di loro non hanno simpatia per i detenuti. Appongono agli immigrati il marchio di “illegali” e usano ciò come scusa per ignorare la violazione dei loro diritti umani. Gli esseri umani non possono essere “illegali”. Chiamarli così significa disumanizzare i migranti con una tossica ideologia razzista. Le azioni possono essere pericolose, o anche criminali. Ma cosa c’è di criminale nel fatto di migrare in sé? I migranti senza documenti sono solo persone che vanno a vivere all’estero, per lavorare, mantenere le proprie famiglie e intraprendere pacificamente azioni commerciali e di collaborazione con altre persone. Questo non è un crimine. Propriamente intese, le migrazioni contribuiscono alla fioritura di una società libera. Aggiungete a ciò che la maggioranza degli immigrati nei centri di detenzione non è stata condannata per alcun crimine.

È chi imprigiona e opprime gli immigrati che commette una serie di crimini nel nome dell’autorità statale. Prendete, ad esempio, l’idea di alimentare a forza gli scioperanti della fame. L’alimentazione forzata è universalmente considerata una tortura; è stata giudicata crudele e inumana da associazioni come la Croce Rossa Internazionale, l’Associazione Medica Mondiale e le Nazioni Unite. Per definizione, alimentare a forza chi fa lo sciopero della fame significa violarne brutalmente e dolorosamente la libertà corporale al fine di sopprimerne la capacità di espressione politica.

Ma la criminalità dei centri di detenzione degli immigrati non finisce qui. C’è anche il fatto che gli immigrati vengono trattenuti indefinitamente per cosiddette “procedure civili”. Non essendo accusati di un crimine, non gli si riconosce il diritto ad essere rappresentati legalmente. Nel 2010, l’84% di loro era privo di avvocato. Questa non è giustizia. È un rapimento aprocessuale ammantato di legalità.

Spesso questa detenzione priva di accusa, giudizio e rappresentanza legale avviene per profitto. Il Northwest Detention Center, dove avviene lo sciopero della fame, è gestito in regime di “privatizzazione” dal Gruppo GEO. Come altri profittatori carcerari, quale la Corrections Corporation of America e la Management and Training Corporation, il Gruppo GEO estrae profitti osceni dal governo per tenere esseri umani in gabbia. Invece di fornire beni e servizi a chi vorrebbe comprarli, i profittatori carcerari offrono violenza di stato in cambio di denaro estorto alla popolazione attraverso l’obbligo delle tasse.

In tutto il mondo, i governi usano le frontiere come scusa per violare i diritti e fare violenza criminale. Il Canada, ad esempio, mette dentro gli immigrati per un tempo indefinito semplicemente perché sono immigrati. I detenuti sono spesso tenuti in isolamento, riconosciuto a livello internazionale come una forma di tortura.

Lo stato di Israele manda i rifugiati africani a un enorme campo di prigionia. Questi rifugiati sono soggetti a violenza e discriminazione aggressiva per via del clima di razzismo paranoico che porta a temere gli africani come “infiltrati” in grado di minare la demografia ebraica di Israele.

In tutto il mondo gli stati rapiscono, ingabbiano, torturano e deportano migranti e rifugiati, e la brutalità delle restrizioni all’immigrazione non finisce qui. Sotto governi oppressivi, le frontiere servono anche a tenere intrappolati gli abitanti, impedendo loro di scappare a violente atrocità. Molti rifugiati lesbiche, gay, bisessuali e transgender, ad esempio, sfuggono alla repressione omofobica dello stato russo solo per ritrovarsi intrappolati nella tagliola della burocrazia immigratoria.

La crisi ucraina è similmente esacerbata da restrizioni all’immigrazione, che intrappolano gli ucraini nel fuoco incrociato del conflitto. Come ha fatto notare recentemente Sheldon Richman,

“Gli ucraini che, temporaneamente o permanentemente, vogliono uscire dal loro ambiente pericoloso, dovrebbero essere liberi di trasferirsi negli Stati Uniti. Mettiamola così: Come osiamo noi americani confinare gli ucraini in una situazione da cui vorrebbero disperatamente scappare?”

Gli immigrati sono spesso accusati di comportamenti criminali. Ma in fatto di politica immigratoria il vero crimine è quello perpetrato dallo stato. Lo stato rapisce, tortura e depreda, e tutto per difendere delle linee tracciate su delle mappe. E così dà la possibilità ad altri stati di opprimere brutalmente i soggetti intrappolati. Tutti gli stati sono attività criminali, e tra le armi più pericolose di cui dispongono ci sono le frontiere.

Traduzione di Enrico Sanna.

When I talk to many Americans about this hunger strike, many lack sympathy with the detainees. They brand immigrants as “illegals” and use this as an excuse to ignore violations of their human rights.  Human beings cannot be “illegal.” To refer to them as such dehumanizes migrants through a toxic and racist ideology.  A person’s actions may be harmful, or even criminal. But what is criminal about migrating? All undocumented immigrants have done is travel to a new country to live, work, support their families and engage in peaceful commerce and association with people. That’s no crime. Properly understood, migration is part of what makes a free society flourish. Moreover, the majority of immigrants held in detention centers have not been convicted of any crime.

Meanwhile, those who detain and repress immigrants engage in a litany of violent crimes enabled through state authority. Take their plot to force feed the hunger strikers, for example. Force feeding is widely considered torture and has been deemed cruel and inhumane by organizations including International Red Cross, the World Medical Association and the United Nations. By definition, force feeding hunger strikers involves brutally and painfully violating their bodily autonomy in order to suppress their political speech.

But the criminality of the immigration detention system doesn’t end there. Immigrant detainees are held indefinitely in supposedly “civil proceedings.” They are not charged with crimes nor are their rights to legal representation honored. As of 2010, 84% of detained immigrants were not represented by a lawyer. This is not justice. It is due-process-free kidnapping under the color of law.

This detention without charges, trial, or representation often occurs for profit. The Northwest Detention Center, where the hunger strikers are held, is operated in “privatized” fashion by GEO Group. Like other prison profiteers such as Corrections Corporation of America and the Management and Training Corporation, GEO Group extracts obscene profits from government for locking human beings in cages. Rather than providing goods and services people want to buy, prison profiteers engage in state violence in exchange for money plundered from the people through coercive taxation.

Throughout the world, governments use borders as an excuse to violate rights and engage in criminal violence. For example, the Canadian state cages immigrants indefinitely simply for being immigrants. They frequently hold these detainees in solitary confinement, which is internationally recognized as a form of torture.

Meanwhile, the Israeli state has been sending African refugees to a massive prison camp. These refugees are subjected to violence and rampant discrimination motivated by a climate of paranoid racism in which Africans are feared as “infiltrators” that may undermine the Jewish demographics of Israel.

States throughout the world kidnap, cage, torture, and deport migrants and refugees, but the brutality of immigration restrictions doesn’t end there. Borders trap people under oppressive governments, preventing them from fleeing violent atrocities. For example, many lesbian, gay, bisexual and transgender refugees flee the Russian state’s homophobic repression only to find themselves ensnared in the coercive clutches of immigration bureaucracies.

Similarly, the crisis in Ukraine is exacerbated by immigration restrictions, which trap Ukrainians in the crossfire of the conflict. As Sheldon Richman recently put it,

“Ukrainians who want to get out of their dicey neighborhood, whether permanently or temporarily, should be free to move to the United States. Look at it this way: How dare we Americans confine Ukrainians to a condition they might desperately wish to escape?”

Immigrants are often smeared with accusations of criminality. But the real crimes in immigration policy are perpetrated by states. States kidnap, torture, and plunder in order to enforce lines drawn on maps. And in doing so, they enable other states to brutally repress trapped subjects. All states are criminal enterprises, and borders are among their most dangerous weapons.

Translations for this article:

• Portuguese, Como as fronteiras possibilitam os crimes estatais.
• Italian, Le Frontiere Incoraggiano la Criminalità di Stato.

Frédéric Bastiat famously stated in The Law that “when law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.” Unfortunately, this is exactly what is happening. Both outcomes of this decision are deeply undesirable for the people of Arizona.

These types of dilemmas are very troubling, but history does provide some guidance. Examples abound with moral lawbreakers. Martin Luther King didn’t ask the permission of racists to challenge their convictions. Gandhi stood in defiance of the law to the British imperialists.  John Brown would not wait to see enslaved Africans liberated any longer and acted decisively. Lysander Spooner never groveled for state sanction to become a lawyer or to start the American Letter Mail Company.  Henry David Thoreau refused to pay a poll tax in protest of the travesty of the Mexican-American War, subsequently writing Civil Disobedience as a result. It was in his cell that he proclaimed, “under a government which imprisons unjustly, the true place for a just man is also a prison.”   Harriet Tubman reacted to the injustice of slavery and risked her life many times to free the enslaved from bondage. The Tea Partiers of the American Revolution did not wait for the law to catch up to their sense of moral indignation; they acted on their own consciences as a small fraction of the Boston community!

Recently, Bradley Manning bravely acted out against the murderous policies of the American state.  His and Wikileaks’ actions, though illegal like those of Daniel Ellsberg of a previous epoch, did a great deal to unearth the madness of the policies of the state and furthered justice.

We certainly do not judge well the “Good Germans” of World War II who were supposedly uninvolved in the Nazi terrors.  “Just following orders” is contrary to most Americans’ intuitive sense of justice. If one obeys a law because the guiding principle is just then morality and our community are well-served. People who behave in this manner do our communities a great service. However, if one obeys a law for no better reason than that it is law, all one is doing is respecting power, and disappointingly, not virtue.

American culture is many things, but it is definitively not about respect for unjust authority. The entire history and culture of this place echoes a profound respect (at the very least rhetorically) for freedom and justice under the law.  America has seen a strong tradition of individuals acting immediately as nullifiers to laws they deem unjust.

Regardless of whether one agrees with the thrust of Arizona’s immigration bill, SB1070, we should all agree that following laws merely because they are laws is a horribly low standard to set for our communities. I personally don’t want people who “just follow orders” as my neighbors. I want neighbors who boldly confront problems which prick their moral indignation and offend their sense of justice. Members of our community who are willing to act against their moral convictions and follow bad laws are not reliable members of a responsible community, and never could be.

Even if one does not agree with Luz Santiago’s anti-SB1070 stance, one should openly welcome her voice in a freethinking and inquisitive community and be glad that there are some who will bravely follow their moral convictions in the face of great opposition. One would be lucky to have such neighbors in any community.