"State of Exception"

Abstract

The State of Exception adopted by the Salvadoran government aims to rid the country of extreme violence from gangs such as Mara Salvatrucha and 18 Street. Although the State of Exception has attempted to remove one issue, it has created additional human rights issues by suspending freedom of expression, association, and due process. Through my research, I argue that the State of Exception is a biopolitical tactic that attempts to remove one issue, but has instilled a new form of repression within the country, while examining the implementation of the State of Exception, its effects on the people, the point of views of the population, and the relationship between the United States along with other organizations.

Vanessa Alcantar

Vanessa Alcantar is a graduating senior majoring in Central American and Transborder Studies. Her passion for finishing her degree comes from her love for her husband, family, and awareness of their courage and strength to start in a new place. She is a small business owner, who aspires to provide support to the Latino community and hopes to provide resources to others with her work. In her downtime, she enjoys learning new art forms, reading about current events, fashion, and beauty, and learning new skills.

El Salvadorr's state of exception under Article 29 of the Constitution is a biopolitical tactic that attempts to remove the threat of gang activity and violence from the country. However, this attempt to improve the country has also created additional human rights violations. The exception has done so by suspending civil liberties protected by Articles 5, 6, 7, 13, and 24 of the Salvadoran constitution: freedom of movement, press, association, protection from unjustified restraint, and the right to telecommunication. This suspension of rights has instilled a new form of repression within the country that is prevalent and growing with the continuous extensions granted by the legislative branch at the request of President Nayib Bukele.

When examining the relationship between the Mara Salvatrucha, or MS-13 for short, and the Salvadoran state, there has been a failure to control and maintain order. Unfortunately, this has only empowered MS-13 to grow in numbers and continue its crimes against the population. The extreme crime and violence of gangs like MS-13 have become a nightmare in El Salvador. There have been no successful policies from past presidencies, which have resulted in creating a necessity for harsher responses from the current administration.

Because of the deportation of gang members from the United States during the 1990s, MS-13 has spread throughout Central America and instilled the use of threats, fear, and murder to control the population for personal gain. Many Central Americans have been affected in various ways; some have had to flee the country while somewhere unable to leave. The remaining Salvadorans have been forced to endure the worst of this criminal organization. Failure to maintain the perpetual threats has prompted the state to invoke a state of exception and use a greater force to gain some order within the country; at least, that is what President Bukele claims for his controversial actions. To understand why El Salvador has taken such a forceful measure, we need to examine the history of MS-13, the political actions of the United States and Salvador, the impact on the population, the re-emergence of “iron fist” policies in El Salvador, and the response of the public to this new way of governing.

Street gangs have been a part of American culture for years, but for El Salvador, gangs are an import from the United States. MS-13 began in Los Angeles during the 1980s when El Salvador was in the midst of a Civil War. Many Salvadorans fled to the United States to escape the violence. While many Salvadorans sought asylum within the United States, they were not granted refugee status because of U.S. policy but U.S. involvement in Central America. Regardless of the relationship, this did not stop the influx of undocumented Central American migrants to the United States. Many refugees found homes in East and Central Los Angeles- primarily communities of Mexican descent, who were already accustomed to gang activities in their communities.

Salvadorans were the minority here and, unfortunately, were targets of local gangs, racial prejudice by police, and persecution. They were targets due to their immigration status, language barrier, and background. Additionally, media depictions of the ongoing war in El Salvador painted the country as on the verge of a communist takeover and an extreme threat to democracy in the West; this also greatly contributed to the oppression they experienced. New Salvadoran immigrants had a necessity for protection against neighborhood gangs. Many young immigrant teens found refuge with their fellow peers. They grouped and bonded over heavy metal music, cultural similarities, and experiences in the new country.

What began as a group of young heavy metal fans looking to find acceptance and community gradually evolved into a form of organized crime, now heavily armed with high participation rates in extortion, contract killings, and trafficking of drugs, weapons, and humans (Bruneau 2011: 43). MS-13’s connection to the Mexican mafia and criminal activity transformed MS-13 to known hardened criminals. Many refugees had witnessed and experienced the violence of the wars in Central America, desensitizing and normalizing them to violence seen in their new homes in Los Angeles. MS-13 is considered the fastest-growing and the most violent street gang, making them an international threat. They mainly operate within the United States and Central America but have expanded and are documented in other regions of the world (Schneider 2007: 402).
In response to MS-13's growth during the 1980s and 1990s, the United States responded with immigration policies to rid violent undocumented criminals, deporting them back to Central America. In 1996, Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act (Congress 1996). This policy enacted provisions that affected both documented and undocumented immigrants who had been convicted of various crimes. It focused greatly on gang members. Any non-citizen who committed “aggravated felony” offenses would immediately be eligible for prison time or deportation. This tactic was a way to export MS-13 members back to Central America, creating a gang issue for Central American countries. Although these gang members had been convicted in the United States, they were not detained once they reached their country of origin, specifically authorities in El Salvador. They did not have any record of criminal activity in their motherland. Instead of resolving the issue of continuous recruitment growth, the lax carceral actions in El Salvador and the revolving door of deportation allowed many members to make their way back into the United States undocumented (Lineberger 2011: 192). Thus, the United States has exported gang members and their issues without accountability, leaving countries like El Salvador to combat this growing problem independently. Although this was an attempt to remove MS-13, it has proven unsuccessful. It has only created a transnational problem and a more prominent issue among the Salvadoran population: impunity. There seems to be more of an opportunity for the gangs to continue their criminal activity without many repercussions.

El Salvador’s relationship with MS-13 has been a continuous trial and failure. Although there have been attempts to curb the violence, slow growth, and remove influence in El Salvador, the gang has continued its reign as one of the deadliest gangs in Central America. The government's reaction to this has taken the form of “iron fist” policies that use force and extreme measures to contain the problem. Both political parties have adhered to this policy when combating the gang issue but have fallen short regarding force. During the presidency of Antonio Saca, there was an attempt to distinguish gangs through a collection of laws known as “Mano Dura'' in 2003. This measure, similar to the current state of exception, criminalized gang membership and labeled it “unlawful association” if a person were to communicate or identify themselves with relation to gang culture; this could lead to their imprisonment for up to 60 days (Lineberger 2011: p.194). At the time of this measure, the judicial branch declared that this tactic violated government power and was repealed. The second attempt to restore some order was under President Mauricio Funes, known as “Super Mano Dura .” Similar to Mano Dura, this measure also included prevention and intervention initiatives. Unfortunately, these measures only assisted in lowering recruitment, but not other gang activities such as homicide, drug trafficking, and arms trafficking. Instead, these newer measures put a strain on the prison system that was already bleeding through the seams and did not make an indentation on gang presence - it gave them a chance to adapt and reorganize in prison. The prisons were a hot zone for the gang’s top leaders to make decisions about the members’ actions outside prison. It was another failed violent policy.

Moreover, another government tactic had been to deploy its ’ military force to control gang violence as a way to monitor gangs. In 2010, Funes deployed the military to set up checkpoints around the country to search and arrest individuals associated with gangs (Lineberger 2011: 197).

The state of exception can be described as a state of emergency imposed by the government during times of crisis. Philosopher Giorgio Agamben describes the state of exception as “a suspension of the juridical order itself and defines law’s threshold or limit” (Agamben 2005: 4). It moves within the law and outside the law because it suspends certain rights of the constitution but still invokes power to the government during what it describes as an “extreme measure” (Agamben 2005: 1). In the case of El Salvador, the state of exception has 
been invoked due to the extremity of gang violence in the country, gangs being the extreme measure that has brought an imbalance to society. El Salvador’s legislative assembly approved this measure in March of 2022 following an increase in homicides in the country. The state of exception was imposed for an initial thirty days. However, the measure has been extended monthly and is still being exercised. Since its implementation, it has made progress, with the state making nearly sixty thousand arrests in the country (Brigida, 2022). Nonetheless, questions have arisen concerning the state of the exception’s legality and whether or not it has created additional human rights violations. Under the constitution of El Salvador, a state of exception is accepted under Article 29, which states:

"In cases of war, invasion of the territory, rebellion, sedition, catastrophe, epidemic, or another general calamity, or serious public order disturbances, guarantees may be suspended" (El Salvador Constitution). 

The issue of legality centers around determining whether gang violence can be identified as a type of emergency according to the Constitution. While the state of exception removes certain rights, it brings order to the state and instills another way of governing in times of hardship. For the state of exception to function, the state must have the force of law to proceed with this tactic; through Nayib Bukele’s presidency, we can see his use of the military and police to make progress. Although the state of exception has shown progress in removing gang members and affiliates from the public, the population is experiencing a human rights crisis.

Various sources have determined that governmental authorities are targeting low-income and marginalized areas of the country, focusing more on appearance rather than evidence of gang affiliation (Blitzer 2022). The issues that have been reported are but are not limited to, profiling, mass arbitrary detention, torture, ill-treatment of detainees, enforced disappearances, and death while in custody (Blitzer 2022). There are also claims of terrible prison conditions, from packed cells to lack of food and potable water, police brutality, and no access to care after receiving injuries. Outside the prisons, the population is enduring harassment in their neighborhoods by authorities to search and question to make additional arrests (Sherman 2022). This approach affects the entire population instead of individual groups that the state of exception aims to target.
Theoretically, the state of exception is an efficient tactic to attack the extreme measure that directly brings societal imbalance. Yet, in practice, it is flawed. It does not account for the other factors found commonly within society, such as discrimination, ego, personal opinions, or agendas of those in power. Thus, with just a suspicion of a person’s involvement in gang activity, there is a great possibility for them to be apprehended immediately. The idea behind the state of exception in El Salvador is to remove gangs from the streets by removing violence in the country, detaining and erasing gang culture from society. However, there is a negative effect on the populations with no known gang affiliation- they are being detained without cause. All it takes is an accusation for an arrest. This power granted to local authorities puts people in danger since there is no due diligence.

An active, unquestioned power can detain, harass, and repress the public based on improving the country. As a result, this may lead to a repressive government that makes one question the government's interests and limitations under El Salvador’s state of exception. There is no accountability of authorities if they are following orders or abusing this newly granted power and force of law to adhere to a quota. The state of exception has given more power to the governmental authorities and the state. It has removed partial sovereignty from the people and put their democracy in a dangerous state of unquestionable power. According to French philosopher Michel Foucault, the state of exception is considered a biopolitical tactic because it implements a forced political order. He discusses biopolitics as:

"A set of political techniques that situate human life at the center stage of political order that affects political notions such as democracy, sovereignty, and civil society" (Foucault 2009:104).

In the model of El Salvador, the state of exception is a political technique that attempts to control a threat to the population. It attempts to remove extreme violence from society by suspending rights to detain those suspected of gang affiliation, creating a more manageable population. This intervention has given more control to the government through repression but also uses the public’s fear of violence to its advantage. It is a productive tactic that allows the country to develop economically. The government's addition of Bitcoin into the country's forms of currency and the push for investment in areas such as Surf City to promote tourism and foreign investments are the political economy of what Foucault describes as part of the triangulation of governmentality (Foucault 2009: 104). The state of exception constraints the population but also encourages the possibility of a state without gang violence. The population’s fear of extreme violence has provided the government with the elements to manage the population without much resistance because of the need to feel somewhat protected by authority rather than be at the mercy of the gangs in the streets.

Media interest has magnified the situation for both El Salvador and President Nayib Bukele as claims of human rights violations continue to be reported. There is deliberation as to whether the country may be experiencing a resurgence of an authoritarian government. Bukele and his new party, Nuevas Ideas, have made progress with their initiatives but have also pushed the limits of their power with violations of human rights, the constitution, and the use of the military against its own country. Although the state of exception has resulted in mass arrests in its attempt to remove gang culture in the country, it has also affect ed marginalized communities. These exemplify actions that can affect the future of El Salvador’s democracy. The executive branch uses its power to alter El Salvador’s democracy through the state of exception. They are controlling the population and defining what rights this country has and what the government can choose to limit. The executive branch has threatened members of Congress with military force, fired Supreme Court magistrates, and replaced them with those who favor President Bukele’s upcoming political run for an additional term prohibited under the current constitution. Freedoms, such as the press, have also been challenging for journalists, who have had to flee the country because of their opposition to the president.

El Salvador has had a history of authoritarian dictatorships. Before the gang issue, El Salvador had a dictatorship in the 1930s; during this time, the peasant and working class endured government repression. During this dictatorship, civilians endured military abuse of power, death squads, mass murder, disappearances, and genocide until the signing of the peace accords in 1992, after a long and violent civil war. The actions of President Bukele exhibit the military force that once plagued El Salvador and can relate to Carl Schmitt's theory of dictatorship, which explains the two types of dictatorships: commissarial and sovereign. Commissarial dictatorships aim to defend or restore the existing constitution.

In contrast, sovereign dictatorships aim to create a state of affairs where it becomes possible to impose a new constitution (Agamben 2005: 33). President Bukele’s actions seem to steer similarly to a sovereign dictator, as he seems to possibly be setting the scene to remove the constitution and create a new form of governing. In the state of exception, the constitution has been suspended but is still within the law because of Article 29, making it a complex form of governing within the law; however, the additional actions that have threatened the balance of the government are cause for concern. Secondary concerns that have surfaced are the president’s approval rating, which is the highest approval rating for a president in El Salvador. According to the Instituto Universitario De Opinión Pública, Bukele has an approval rating of 86.7%. Media outlets are reporting wrongdoings. The Human Rights Commission has opened an investigation against the Salvadoran government for human rights violations (Human Rights Commission).
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The state of exception has received a large amount of media coverage. Bukele’s use of social media has prompted attention to El Salvador and its development and regulation of crime rates in the country. This has proven that the government can suspend human rights if an extreme threat needs government interference. The public experience with MS-13 has created a space where the government has the elements to justify its actions. MS-13 has created such a large transnational problem that other countries, like Honduras, have imposed a state of exception that suspends similar rights like El Salvador. Their goal is to control gang activity within their countries, as El Salvador claims to have done. This government intervention has become a model for others attempting to control gang activity.

Nayib Bukele has set precedent. The state of exception is a biopolitical tactic changing El Salvador’s democracy. Although the exception has allegedly removed gang members off the streets, there are questions concerning human rights. This type of governing has many flaws and reflects an authoritarian approach to suppress society rather than improve it. Bukele’s implementation of this measure is only a band-aid solution for the problem of gang organizations, as it reflects similar actions of previous approaches by past Salvadoran presidents. The state of exception is not a special kind of law. It is a suspension of law that gives the executive branch additional power over the population. The extensions that have been passed have shown the ability of the executive branch to make decisions without much opposition in the legislative and judicial branches. The possibility of El Salvador returning to an authoritarian government seems to be increasing and may be amid a radical change that many are predicting.​

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