"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 Salvador’s state of exception under Article 29 of the Constitution, is a biopolitical tactic that is attempting to remove the threat of gang crime and violence from MS-13, 18th street, and other gang affiliates out of the country, but 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, which are 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 that have been granted by the legislative branch at the request of President Bukele. When examining the relationship between MS-13 and the Salvadoran state, there has been a failure to control and maintain order,  and unfortunately, has only empowered MS-13 to grow continuously 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, because of the lack of success there has been in past presidencies, creating a necessity for harsher responses from the current government. With the deportation of gang members from the United States during the 1990s, MS-13 has had the opportunity to spread among Central America and instill their use of threats, fear, and murder to control the population for their personal gain.

​Many Central Americans have been affected in a variety of ways, some have had to flee the country, and others who were unable to flee, have been forced to endure the worst of this criminal organization. The failure to maintain this threat has given the state a reason once again to invoke a state of exception and to use greater force to gain some type of order within the country. In order to understand why the country of El Salvador has taken such a forceful measure, we need to examine the history of Mara Salvatrucha, the political acts of the United States, El Salvador, the effects 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. The Mara Salvatrucha, MS-13 for short, started in Los Angeles during the 80s when El Salvador was in the midst of the Civil War. During this dangerous time, many people fled to the United States to escape the violence of the war in hopes of finding a safer place. While many seek asylum in the United States, they were not granted Refugee status because of the United State’s involvement with the wars in Central America. Although this was an obstacle, this did not stop the influx of undocumented migrants to the United States. A large portion of refugees found homes in East and Central Los Angeles, in neighborhoods that were mostly communities of Mexican descent, who were already accustomed to issues with gangs. Salvadorans were the minority here and unfortunately were targets of local gangs, racial prejudice by police, and persecution. These new additions to communities were easy targets as a result of their immigration status, language barrier, and background.

Media depictions of the ongoing war in El Salvador painted the country as on the verge of communist takeover and an extreme threat to democracy in the west,  which also contributed to the oppression this new group of immigrants experienced. Due to this discrimination and the necessity of protection against neighborhood gangs, many young teens of these migrant families found a type of refuge by grouping together where they connected over heavy metal music, cultural similarities, and their experiences in the new country. What began as a group of young heavy metal fans looking to find acceptance, turned into a delinquent and violent gang over time. Their interactions with local gangs and the gang culture of Los Angeles paved the way to adapt to an extremely violent criminal organization. Their connection to the Mexican mafia and time in prison, made many of these members hardened criminals, and added to the list of crimes that already were transpiring with this group.

Many refugees had witnessed and experienced the violence of the wars in Central America, which may have desensitized them to violence, and could have been a leading contributor to the increase in violence. MS-13 is considered to be the fastest-growing and the most violent street gang that has become an international threat, it operates within the United States, and Central America and is appearing in other regions of the world (Schneider 2007: 402). MS has become a form of organized crime that is heavily armed and has high participation rates in extortion, contract killings, and trafficking of drugs, weapons, and humans, among other crimes (Bruneau 2011: 43). Recruitment is now much more violent than it was when the group first formed. A thirteen-second beating from a jump-in is no longer sufficient to join the gang, murder is now the price needed to join.

​In response to this growing violent gang during the 1980s and 1990s, the United States responded with immigration policies to rid itself of violent criminals who were undocumented, transferring that burden 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 and focused greatly on gang members. Any non-citizen who committed  “aggravated felony” offenses would immediately be eligible for a time in prison 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, once they reached their country of origin, the crimes committed in the United States, authorities in El Salvador did not have reasons to hold these people, as most did not have any criminal records in the country. A mass deportation was the way the United States attempted to rid itself of this growing violent gang, under the Immigration and Nationality policies, lesser criminal acts were added to the policy to attempt to round up as many MS members. However, this has not resolved the issue of the continuous growth of recruitment, and the revolving door of deportation, where many members decided to return and make their way back into the United States undocumented (Lineberger 2011: 192).

The United States in its own way has exported gang issues without any accountability, leaving countries like El Salvador to combat this growing problem. This type of action has not proven to be successful, although it was an attempt to remove this violent group, it has only created a transnational issue and a larger issue among the Salvadoran population where it seems that there is more opportunity for the gangs to continue their criminal activity without many repercussions. Now with the strength of this criminal organization and the stress it has put on other countries that were not prepared to handle this influx of criminals from the United States.

​El Salvador’s relationship with MS-13 has been one of continuous trial and failure, although there have been attempts to curb the violence, slow growth, and remove influence in the country, the gang has continued its reign as one of the deadliest gangs in Central America.  The government's reaction to the gang issue 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 type of policy when combating the gang issue, but have fallen short when it comes to force. During the presidency of President Antonio Saca, President Saca attempted 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 communicated or identified themselves with relation to gang culture, they could be imprisoned and would receive up to 60 days in prison (Lineberger 2011: p.194).

At the time of this measure, the judicial branch declared this tactic was a violation of government power and repealed this measure. The second attempt under President Funes was 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 activity, which moved towards homicide, and drug and arms trafficking. What these measures did was put a strain on the prison system that was already bleeding through the seams, and did not make an indentation on the gang's presence, rather it gave them a chance to adapt and reorganize in prison. The prisons were unfortunately a hot zone for the gang’s top leaders to make decisions about the member’s actions outside of prison. Another tactic of the government has been to deploy its military force to control gang violence, as a way to monitor gangs. In 2006, President Funes deployed the military to set up checkpoints around the country in an attempt to search and arrest individuals who were found to be associated with the gangs (Lineberger 2011: 197). These attempts to deter gangs have been a difficult task, since the arrival of MS-13, the gang has been able to adapt and work around these laws, leaving the country in turmoil.

However, with the latest state of exception of the Bukele presidency, there has been progress in the detainment of gang members and lower homicide rates. The state of exception of this new presidency is showing results that have not been seen, there is a great use of force that comes from the power this new presidency has been able to grasp.

​The state of exception can be described as a state of emergency that the government can impose during times of crisis. 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.

This measure was approved by El Salvador’s legislative assembly in March of 2022 following an increase in homicides in the country. The state of exception was imposed for an initial thirty days, however, since then the measure has been extended every month and is currently still being exercised. Since its implementation in March, it has made progress, with the state making nearly sixty thousand arrests in the country (Brigida 2022). The state of exception uses a reason to justify its actions, for the government of El Salvador, the issue is gang violence and its impacts on society. Their actions to combat this issue with a suspension of rights is an option that presents itself in democratic governments, as we have experienced here in the United States during the Covid-19 measures.

However, there are questions about its 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 disturbances of public order, guarantees may be suspended (El Salvador Constitution).

​The issue of legality is how to determine if gang violence can be identified as a type of emergency according to the constitution. Although the state of exception removes rights certain rights, it still brings order to the state and instills another way of governing in times of hardship. In order for the state of exception to function, the state must have the force of law to proceed with this tactic. We can see this with the actions of the Bukele presidency and his use of the military and police to make progress. The state of exception, although has shown progress in removing gang members and affiliates from the public, the population is experiencing a human rights crisis. From news reports, it has been identified that the authorities are targeting low-income and marginalized areas of the country, focusing more on appearance, than actual 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 conditions inside the prisons, packed cells, lack of food and clean drinking water, beatings from police, and no access to care after receiving injuries. Outside of the prisons, the population is enduring harassment in their neighborhoods by authorities to search and question in order to make additional arrests (Sherman). This repressive approach affects the entire population, not just an individual group that the state of exception is targeting.

​The state of exception, in theory, works since it is a tactic that aims to directly attack the extreme measure that is bringing an imbalance to society, but in practice, it has flaws as it does not account for the other factors of society such as discrimination, ego, personal opinions, or agendas of those in power. The state of exception provides authorities with more power to control the population without any question. If there is any suspicion of a person’s involvement in gang activity, they can be apprehended immediately. The idea behind the state of exception is to remove gangs from the streets, removing the leading issue of violence in the country by detaining and erasing gang culture from society, but where it begins to fail is the effects on the population that has no affiliation with gang culture, but are detained without any just cause.

This power that has been granted to local authorities puts the people in danger because of the unchecked power that now has the authority to detain, harass, and repress the public on the basis of improving the country. The result of this unchecked power may be leading to a different type of government that is much more repressive and brings us to question the government’s actual interests and what limitations if any, the government has now under the state of exception. There is no accountability of authorities if they are following orders, or if they are abusing this newly granted power and force of law simply to adhere to a quota. 

The state of exception has given more power to the authorities and state and has removed part of sovereignty from the people and puts their democracy in a dangerous state of unchecked power. The state of exception is considered a biopolitical tactic because of its implementation of political order. Michel Foucault 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 the political technique that is attempting to control a threat to the population. It is attempting to remove extreme violence from society with the suspension of rights in order to detain those suspected of gang affiliation, creating a 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. Although it is repressive, it is productive, as this tactic is allowing the country to continue its development 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 is also encouraging 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. This has prompted the acceptance of this policy within the majority of public opinion in return for the peace of mind that they can roam the country without the fear of being targeted by gangs.

Recent reports from journalists have put a magnifying glass on top of El Salvador and President Nayib Bukele as claims of human rights violations continue to roll in. There is deliberation as to whether the country may be experiencing a resurgence of an authoritarian government. Nayib Bukele and his new party, Nuevas Ideas, have been able to make 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 been progressing with mass arrests and its attempt to remove gang culture in the country, it is also affecting marginalized communities. These exemplify actions that can affect the future of El Salvador’s democracy. The executive branch is using its power to alter El Salvador’s democracy through the state of exception and 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 are in favor of President Bukele’s upcoming political run for an additional term that is prohibited under the current constitution. Freedoms such as the press have also been challenged by journalists that have had to flee the country recently because of their opposition to the President. El Salvador has had a history of Authoritarian dictatorships. Prior to the gang issue, El Salvador had endured 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 Schmidt's theory of dictatorship, which explains the two types of dictatorships, commissarial and sovereign.

Commissarial dictatorships aim to defend or restore the existing constitution, while sovereign dictatorships aim to create a state of affairs where it becomes possible to impose a new constitution (Agamben 2005: 33). President Bukeles 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. 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, President Bukele has an approval rating of 86.7%, while there are claims of wrongdoing from media outlets from local stories and from organizations like the Human Rights Commission has opened an investigation against the Salvadoran government for human rights violations (Human Rights Commission).

The state of exception has received a large amount of media coverage. President 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 has the power to suspend human rights if there is an extreme threat that 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 also imposed a state of exception that suspends similar rights like El Salvador, in an effort to control the gang activity within their countries as El Salvador claims to have done. This type of government intervention has now become a model for others to attempt in an effort to control gang activity.

​The current form of repression being felt by non-gang-affiliated residents in El Salvador has caused a large concern considering the country’s history. Although the Civil War of the 1980s has since long been over, the country is now dealing with a far more violent group that seems to have no limits to their actions. MS-13 has grown to be one of the most violent gangs in Central America and has terrorized the population since the 1990s. this threat has affected El Salvador in many ways, and it is understandable that the majority of the population currently approves of the firm policies that have restricted rights, even though it affects them as well. Further proving that the actions of President Bukele have been indicated to be effective. The state of exception has excelled in creating a new form of force to combat threats to the population. The amount of media the exception is receiving has given the presidency an opportunity to showcase its actions for national security.

Social media as well has provided the nation the opportunity to show their experience during this crucial time, along with providing the government a platform to promote themselves and manipulate certain information regarding the progress that has been made. While reports show President Bukele’s high approval rating within the community of El Salvador, there is opposition to the government's actions with the state of exception. In contrast, the response of the public has been to organize against the actions of the state of exception and President Bukele. Organizations such as the Movimiento de Victimas del Régimen, CISPES, El Kolectivo San Jacinto, CRISTOSAL, Bloque de Rebeldía y Resistencia Popular, and Juventud Farabundo Marti have demanded justice, in forms of connection with the United Nations, protesting in front of the legislative branch to demand the repeal of the exception, condemning its authoritative power, rejecting the arbitrary arrests and lack of application of real law. There are also demands for creating a commission to process hearings for those arrested illegally and to release those who have been wrongfully accused of gang affiliation (Oliva).

The State of Exception is a biopolitical tactic that is changing the democracy of El Salvador. Although the exception has removed gang members off the streets and has shown to be progressing, it is also causing additional human rights issues; this type of governing has many flaws and reflects a type of authoritarian approach to suppress society rather than improve it. President Bukele’s implementation of this measure is only a band-aid 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 and gives the executive 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 rising and might be in the midst of a radical change that many are predicting.

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