Arrest, Imprisonment, And Bare Life In A State of Emergency

Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested. (The Trial, Franz Kafka)

I’the last night’s storm I such a fellow saw
Which made me think a man a worm. (King Lear IV. i. 33-4)

Just before 8:00 am on January 17, 2016, four UK Home Office policemen entered my apartment, located in Stratford-upon-Avon, across the street from Trinity Church, where William Shakespeare is buried.

“You are under arrest. You will need to get dressed and pack your bags. Your application for leave to remain in the UK has been denied.”

As I stood in my living-room in my bathrobe, two of the officers patted me down “to make sure that I wasn’t armed.” The other two searched my house to make sure nobody else was home. Then, they asked me to get ready to leave.

Two police officers followed me into my bedroom, past the bookcase that contained the plays of Shakespeare and the criticism that had formed the work for the PhD, which I had been awarded in July of 2015. As I stood in front of those officers in my underwear, putting on my blue-jeans and a collared shirt, I began to realize that I was neither a “temporary resident of the UK”, nor a “citizen of the United States”, but something different: a “bare forked animal”.

When I arrived downstairs, dressed, and packed, the lead officer presented me with the order for my arrest. On the order, titled “NOTICE TO DETAINEE”, he checked a box which stated, “The decision has been reached on the basis of the following: You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place.” He underlined the word “family”.

As we prepared to go to the police station, the officers politely waited to make sure that none of my neighbors were entering or exiting my apartment gate, so they wouldn’t see me being arrested. Unfortunately, my neighbors’ living-room windows all face the front gate, a good security measure, but not ideal for privacy. It was a cloudless Sunday morning, so my neighbors were all privy to my forced march to the armored police van, where I was then locked up. I was then transported to Leamington Spa police station, where I was placed in a jail cell for twelve hours and, subsequently shipped to Morton Hall Immigration Removal Centre in Lincolnshire.

My dilemma was richly ironic. Just a few weeks earlier, on December 19, 2015, I had delivered the introductory lecture at the Rose Theatre in Kingston for a conference on “Shakespeare and the state of exception”. In the “state of exception” (also called “the state of emergency”), the law is temporarily suspended ostensibly for the purpose of preserving public safety. As I stated in that lecture, far from being a mere technicality or footnote to legal history, “the state of exception” became the basis for the notorious Article 48 of the Weimar Constitution, which Hitler used to authorize a twelve year state of emergency in Nazi Germany, starting on March 23, 1933. Over those twelve years, Hitler used article 48 to give his dictatorship a veneer of legal credibility. As Agamben writes, “from a juridical standpoint the entire Third Reich can be considered a state of exception that lasted twelve years” (Agamben, 2005).

What initially began as a “provisional” or “extraordinary” measure has now, in modern democracies, become a “technique of government” that, according to Agamben, “threatens radically to alter . . . the structure and meaning of the traditional distinction between constitutional forms” (Agamben, 2005).

In civics, I had been taught that all people are “endowed by their creator” with “inalienable rights”, but what I learned from my arrest is that the unitary self I imagined is a fiction. Far from being “inalienable”, the rights we associate with “citizenship” (in my case, “citizenship” of the United States and “legal residency” in the UK) are all contingent: dependent upon age, income, mental and physical health, and country of birth. Whenever we stray to the boundary of one of these categories, we are no longer “citizens”, but potentially reduced to being mere animals, subject to the absolute violence of the state.

And this is clearly how David Cameron regards immigrants. On July 30, 2015, when asked by reporters about what was called the “Calais crisis”, the attempt by desperate migrants to cross the channel from Calais to Britain, Cameron referred to “a swarm of people coming across the Mediterranean . . .”  What rights can a population of insects possibly aspire to? Such a population is only a threat to be exterminated.

I should know. Within minutes, on an ordinary Sunday morning, I became one of the swarm.

At around 5:30 am, after being driven for almost five hours in a prison transport van, I arrived at Morton Hall, one of twelve camps for refugees, deportees, illegal aliens, and foreign criminals, scattered across the UK. Most of my belongings were seized. I was allowed my clothing, my watch, my glasses, and I was given a £5 Nokia cell phone.

My room was about the size of a large closet, but it was private. I had a key — and the door locked automatically when I closed it. It had a cage-like steel mesh on the window. The walls were at least two feet thick with re-enforced concrete. The door had a slit on it, with a wooden cover that could open from the outside. The guards could peer into my cell at any time — and they did so at night, shining a flashlight on me while I slept. My bed was a wooden slab with a 1.5 inch foam mat.

When I looked out my “window”, I could see reams of barbed wire hung over a series of vast fences. There were one or two trees outside, but they had been stripped of branches so prisoners couldn’t climb them. There was also what looked like a whirlwind of barbed wire on the roof of my cell block.

The order that resulted in my arrest and imprisonment at Morton Hall was, I learned, justified by a provision of the Immigration Act of 2014. Under the previous law, the more auspiciously titled “1999 Immigration and Asylum Act“, it was unlawful to arrest anyone who had “made an application for leave to remain” while they were waiting for a decision. That is logical because when you submit your application, you are required to stay in the country until a decision is made, or else your application will be destroyed.  Under the new Act, a person can be arrested if they “require[] leave to enter or remain in the United Kingdom but do[] not have it.” In other words, it is perfectly legal for you to be arrested and imprisoned even if you have submitted an application to remain in the UK and have followed all the rules. More alarming still, the new law combines in one absolute “decision” the rejection of an application and the order to arrest, while, at the same time, removing judicial oversight.

So you will never know your application has been rejected until the police knock on your door.

What, then, is the “state of emergency” that caused parliament to authorize such an extreme measure that converts all foreigners living in the UK, who are required to pay a hefty fee (more than £500) to submit an application to remain in the country, into “bare life”, subject to arrest and imprisonment? And why is it that international students, specifically, have been targeted? It is precisely the de facto “state of emergency” that prompted David Cameron to include the Brexit referendum in his campaign promises when he sought re-election. In 2011, Cameron promised to alleviate the “discomfort and disjointedness” in neighborhoods supposedly caused by immigration by reducing it to “100,000” per year. By 2014, immigration was still above 300,000 per year. During 2014, as Cameron was preparing for re-election, he attempted to quell a revolt within his own party by introducing a stern new anti-immigration law and by promising to give the country a referendum that would determine whether or not the UK would exit the EU. Under any objective view, the situation did not approach an “emergency”. It was an attempt by the Conservative government to retain power, which is precisely what Agamben predicts: the “state of exception”, simply put, is no longer “exceptional”. It is a normal “technique” of government. International students are targeted – though they are by no means the only group – simply because they are not protected by affiliation with influential companies, are well-monitored by universities, and so easy to locate. In fact, Theresa May is preparing now to further intensify pressure on international students.

During my imprisonment at Morton Hall, I was never accused of committing any crime or breaking any rule. I was neither a “criminal” nor innocent. I was merely one of the “swarm” kept in a prison cell until such time as I could be taken to a secure location near Heathrow Airport under guard, forced to purchase a return ticket home (I already had purchased one six months previously, at a cost of £850), and forcibly placed on an airplane home. Nothing I had done in my previous life, my work for half a decade as a school teacher, my unimpeachable reputation as a resident in the UK, my successful completion of a PhD in Shakespeare Studies at one of the top universities in the country, made any difference.

It was only when more than two hundred members of the academic community and the general public around the world signed a petition uploaded to the Kingston Shakespeare website by my friend and colleague, Timo Uotinen, that my situation began to change. I started to receive phone calls from journalists from The Times Higher Education Supplement and Politics.co.uk; then Buzzfeed, The Independent, The Daily Mail, The Times, etc. started asking for interviews. After days of silence, the Home Office issued a statement, quoted by the Daily Mail, defending my arrest by citing the 2014 Immigration Act: “The Immigration Act 2014 clearly states that a person who does not have leave to remain in the UK is liable for removal. Enforcement action may be taken to remove these individuals.” Chillingly, they were absolutely right.

When Roger Mullin, the Scottish National Party MP, asked in parliament for a statement about my case from the Home Office, the former secretary of state for justice, Chris Grayling replied: “Students are only ever going to be arrested if they are in the United Kingdom without a visa. We have rules. We may agree or disagree about them, but there is no excuse for anybody to break them.” Grayling was dead wrong. You can follow all the rules, but still be arrested. 

The truth is that the lawless violence of my arrest and imprisonment, my treatment as one of a “swarm”, was enshrined in a law that had the approval of both major parties in parliament. I believed that I was entitled to rights under the law, but I was wrong. I had no rights at all. I was “homo sacer”, bare life, one of the insects that existed merely to consolidate the power of the Cameron administration, so long as that power lasted.

In fact, on the day that the Home Office made the decision to release me, due to the overwhelming pressure from the academy and the international press, it faxed a separate order to my attorney’s office: that order stated that my request for bail (£6000, which my friends had collected on my behalf) had been rejected, that I would have to purchase a new plane ticket, and would be accompanied, according to the usual procedure, by armed guard to Heathrow until I boarded my flight to the US, at a date of the government’s choosing. I was given a document detailing this procedure, and explaining the method I would be required to use to pay (again) for my plane ticket. This second order was clearly issued by an official who wasn’t aware of the publicity of my case, but it demonstrates clearly what would have happened had my colleagues in academia, the public, and the international press not intervened.

After I arrived back in the United States, I was contacted by a generous and talented immigrant rights advocate and a number of well-meaning attorneys regarding the prospect of suing the government. But to sue the government would be fundamentally to misunderstand what happened to me. An assertion of “rights”, which are, in law, abrogated for the “swarm” of innocent people occupying twelve detention camps in the UK right now, does nothing to help those people. By attempting to sue, as a US citizen and a person of mostly Caucasian ancestry, I assert my distinction from those people regarded, right now, by the law as insects. It would be to disavow the common experience of subjection that we shared.

Let me explain. On my first day in prison, I was in such a state of shock that I forgot to eat all day and arrived late to dinner. Two Pakistani prisoners, who served the food that night, were well within their rights – after a long day of work – to deny me dinner. Instead, they opened the locked door to the cafeteria, invited me in, and handed me a full platter of lentil dahl – and even gave me a small scoop of ice-cream. As I sat down in my cell with that food, I wept.

Over my ten days of imprisonment, I heard innumerable stories of unlawful arrest: most powerfully, from a Nigerian man married to a British woman and denied citizenship because she was sterile and could not have a British child. I also witnessed profound and haunting suffering. Day and night, a frail man from Afghanistan wandered the hall of my prison ward, hugging himself and moaning “what do I do?” Those words still ring in my mind: now what do I do? The condition of “bare life” that we were reduced to is not something that a lawsuit can redress. It is an open wound whose significance must be read by those who have the compassion to understand it and the will to change the law.

Now that the UK has voted to leave the EU, many imagine that the immigration problem has been solved. Indeed, hate crimes and racial abuse have become common, as “citizens” take the law – as they see it – into their own hands, seeking to speed up the exit of foreigners. But the UK will not actually leave the EU until two years after Brexit has been officially initiated by Article 50 – and even that may take years. Now, what was perceived to be a crisis by the Cameron administration may, indeed, become a real crisis, as the promise by the “leave” campaign to “control” immigration confronts the reality of statistics.

What will happen then?

The twelve “detention” camps that are scattered throughout the UK are largely hidden to those who live there. In 1999, when due process existed – at least in name – for foreign residents living in the UK, they might well have served an important purpose. Now, they are a stain on the country, the physical evidence of the despotic “state of emergency” that inheres within the ostensibly democratic UK. And such camps exist not in spite of the public, but because it demands the expulsion of “the swarm”. Whether or not, in a post-Brexit world, the public support for unlawful arrest metastasizes into overt authoritarianism, not only in the UK, but across Europe and the United States (with Trump’s threat to build “a wall” on the Mexican border and order the mass arrest of eleven million undocumented Mexicans), is still an open question. For me, though, and for all those imprisoned now in those twelve camps, it is not just an open question, but an open wound.

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I want to take the opportunity here to thank all those who contacted their MP’s on my behalf, signed the Kingston Shakespeare petition, contacted the press, and inquired after my well-being. Also, thank you to my friends who brought me books and attempted (though, sadly, unsuccessfully) to bring me a mattress, who visited me, who consoled me by calling, courageously published articles defending me, and were there to pick me up from Morton Hall when I was released. I am deeply grateful to you all!