"State of Exception as a means for control: A comparative analysis between El Salvador's Prisons and Detention Centers in the U.S"

Abstract

​For this paper, we will bring together the philosophical writings of Giorgio Agamben's State of Exception and El Salvador’s current (2022) political climate to examine how the United States and El Salvador, though having a difficult history, continuously rely on states of exception as a tool used to maintain power.

Yoselin De
​Leon-Lazo

Yoselin De Leon-Lazo is a fourth year undergraduate student attending CSUN. Upon graduating, Yoselin plans to pursue a doctoral degree in Clinical or Developmental Psychology. Her career aspirations are centered around providing mental health services to unaccompanied minors and children experiencing trauma as a result of migration.

Introduction

The history of El Salvador is complex. Between the years of 1979-1992, El Salvador was in a war within its own country. The Salvadoran Civil War saw the death of over 75,000 civilians (Tseng-Putterman, 2018). As a result of this mass destruction, the diaspora of Salvadoran migrants to the United States has grown exponentially. From this mass migration we have seen an influx of gang violence, poverty, and deportation in El Salvador and its surrounding countries.

The greatest push factor for migration from El Salvador has been gang violence and poverty. Mara Salvatrucha originated in Los Angeles during the 1980s. As a result of the Salvadoran Civil War, many immigrants had been displaced in poor Los Angeles cities (Velásquez, 2019). Mara Salvatrucha formed as a “need” for protection from Mexican gangs. The gang was composed of refugees from El Salvador who resided in the Pico-Union neighborhood, however, over time the gang began to grow rapidly and became more known for their acts of violence in the United States (Velásquez, 2019).

La Mara Salvatrucha is one of the most known examples of U.S intervention. Firstly, MS began as a result of Salvadoran immigrant's need for protection in Mexican dominated cities. Immigrants who fled the war in El Salvador sought an outlet for rehabilitation and stability and formed MS as a result of that need (Velásquez, 2019). In the mid-1990s the Bill Clinton administration began to toughen up their immigration policy by deporting foreign-born residents who had even the slightest convictions. Since gang members had already had a record, a majority of people who were deported back to El Salvador were members of the Mara Salvatrucha gang (Velásquez, 2019). Members who were deported back to El Salvador expanded their base and have now transformed El Salvador into one of the most dangerous countries in Central America. Until the arrival of Nayib Bukele in 2019.

A large portion of immigrants fleeing gang violence are children who are bombarded by recruitment. Over the last twelve years, the death rate amongst children and youth in El Salvador has had a 53% increase when compared to adults. Children often avoid going to school in fear of being recruited by gangs or even killed. Because of the fast rate in which children are fleeing, US Border Patrol has apprehended “26,937 unaccompanied children in the fiscal year 2019” (Sands, 2019). Adding to the already thousands of adults migrating from Latin America.

The United States’ Immigration Detention Centers have been a growing institution since the late 1890’s. Over the years, attention has been brought to the mass public on the living situations of undocumented immigrants in the detention centers located throughout Texas. As of November 20, 2022, 30,001 migrants are being detained in these prison-like institutions. Of these 30,001 migrants, 69.1% do not have any criminal record (TRAC, n/a), or even a traffic violation. These detention centers are oftentimes described as overcrowded, cold, as having inadequate medical care, and causing death.

The purpose of this comparative analysis is to demonstrate the ways in which countries like El Salvador use states of exception to control their population. Using the framework of the philosophical writings of Giorgio Agamben's, we will begin to understand how though the United States has historically oppressed El Salvador, El Salvador derives some of its influences from the western governments. Specifically, while comparing how immigrant populations are treated in U.S detention centers and how prisoners are treated in El Salvador.

For this paper, we will bring together the philosophical writings of Giorgio Agamben's State of Exception and El Salvador’s current political climate. In order to examine and compare the state in which people are meant to live in detention centers and the ways that El Salvador is keeping their prisoners, I will use resources derived from Human Rights organizations that describe any violations of human rights being inflicted in both institutions. More importantly how these two countries though having a difficult history, continuously rely on states of exception as a tool used to maintain power.

​State of Exception

Circumstances in world history have called for urgent action in political and governmental decision making. This urgent call for action is oftentimes referred to as a “State of Exception”. The State of Exception was first established by Carl Schmitt in his book Politische Theologie. In his book Politische Theologie (1922), Schmitt defines the sovereign as “he who decides on the state of exception”. A State of Exception refers to a process by which the government allows the rule of law to be dismissed in the name of a specific cause or issue (in the name of the public good). Notably, the State of Exception does not hold an official standing in public law. In the present constitution of the United States, the state of exception is regulated by Article 16. Which established that the president of the republic can take any necessary measures when the “institutions of the republic, the independence of the nation, the integrity of the territory, or the execution of its international commitments are seriously and immediately threatened” (Agamben, 2008, p.2). Therefore, while it may appear as a legal form it subsequently holds no ground in law.

​One of the most notable and ongoing examples of a state of exception is that which was authorized under the Bush Administration on November 13, 2001 (Agamben, 2008, p.11), two months after the 9-11 attack that took the lives of more than 2, 900 people in the World Trade Center. Under the Bush Administration, a “indefinite detention” and trial by “military commissions” was put into place for all noncitizens suspected of involvement in terrorist organizations. One month before this decision was made, the USA patriot act was issued on October 26, 2001 (Agamben, 2008, p.11). Which allowed for any “alien” suspected of endangering national security to be taken into custody for a maximum of seven days. In this case, given the attack that was launched against the United States, the state of exception called for detention and imprisonment of anyone suspected of being involved in a terrorist organization.

Now, what did this settlement mean for those prisoners and detainees imprisoned by U.S officials during the aftermath of 9-11? A prisoner of war (POW) refers to a person or persons who have been captured and held captive by a governmental power during war (Britannica, 2022). In 1949, the Geneva Conventions (UN, 1949) were established as a series of four treaties to define legal standards of humanitarian treatment under the case of a war. Article 13 of the Geneva Conventions states:
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“Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention… Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity” (UN, 1949).

​However, under the Bush administration, all legal status of the prisoners of war from the Taliban captured in Afghanistan were erased. Both prisoners and detainees were stripped of their status as human beings charged with a crime under laws established in the USA (Agamben, 2008). Hence, under a state of exception, governmental power has a right to dismiss a rule of law given that the country is under immediate threat.

The United States is not the only country to enact its own state of exception in world history. We can see it in the Third-Reich under the dictatorship of Adolf Hitler (1933-1945), in Cuba under the influence of Fidel Castro, including Nicaragua under Daniel Ortega (2018). Understanding the meaning and history behind states of exception aid in our recognition of it as a legal system, and not as the cause of dictatorship or totalitarianism. Honduras, like El Salvador, has confirmed a state of exception effective December 6, 2022 (Genoves, 2022). It is being implemented in 162 areas of the Central District (Tegucigalpa and Comayagüela) and San Pedro Sula of Honduras. Sectors that are marked by high rates of crime and violence. This state of emergency suspends six rights guaranteed in the Constitution of the Republic of Honduras. These include: freedom of movement, the right of association and assembly, and the inviolability of the home, amongst others (Genoves, 2022). More importantly, as we delve deeper into the political turmoil in El Salvador we will be conscious of the threatening state of the country and the reasons that lead to its current predicament of Human Rights concerns.

​State of Exception: El Salvador

In recent years, El Salvador has been plagued by poverty and a dramatic increase in Gang Violence. Since the inauguration of Nayib Bukele in 2019, El Salvador has shifted from one of the most dangerous countries, to a safe country for its citizens. While many applaud Bukele’s strides in reducing gang violence, several International and Local Human Rights organizations condemn the government's tactics.

States of Exception are not new in Central American countries. On March 26, 2022, more than 80 people were murdered in the span of 24 hours as a result of gang violence in El Salvador (Alianza, 2022). As a result, under the government of President Nayib Bukele, a state of exception was imposed for 30 days. Set to end on April 24th, 2022, the Legislative Assembly decided to extend the state of exception for an additional month (HRC, 2022). As we approach the eighth month of this State of Exception, 57,000 alleged gang members have been arrested, doubling the number of people already in El Salvador's prisons (Genoves, 2022). Of these thousands alleged gang members, 45,000 have been placed in “indefinite” preventive detention in overcrowded prisons in El Salvador.

With two percent of the Salvadoran population being held behind bars, the direct response from Bukeles government officials and legislative assembly has been to expand and build new mega-prisons for the year 2023. The new Salvadoran mega-prison which will be located in Tecoluca, San Vicente will have the capacity to hold 20,000 prisoners (Vasquez, 2022). Under the name “Terrorism Confinement Center” (Vasquez, 2022), this prison will serve the purpose to hold the 45,000 gang members who are already in El Salvadors overcrowded prsions.

The Rise of Nayib Bukele

Nayib Armando Bukele Ortez, born July 24, 1981, is the 43rd President of El Salvador at the age of 37. Prior to gaining his new title of President, Bukele was the mayor of a small town in El Salvador in which he regularly led cleanings, renovations, and oversaw the construction and design of modern architecture. When elected in June of 2019, Bukele was the youngest head of state in Latin America. An embodiment of new beginnings and change. Bukele, who himself had defected from one of two political parties most known in El Salvador, took office and founded the Salvadoran populist political party “Nuevas Ideas” or “New Ideas”. Bukele was and continues to be, for many Salvadoran citizens and transnational spectators, a breath of fresh air.

President Nayib Bukele made his voice and opinions known on all platforms of media including Twitter and Facebook. Often referring to himself as the “Dictator of El Salvador”. Bukele has made headlines from “Special Report: Human Rights Violations Abound in El Salvador as President Bukele Responds to COVID-19” (CISPES, n/a) to “El Salvador: President Bukele engulfs the country in a human rights crisis after three years in government” (Amnesty International, 2022). While El Salvador is under a state of exception the most controversial topic is the “War on Gangs”.

Nayib Bukeles state of exception has sparked conversation not only in El Salvador but outside as well. On the forefront, Human Rights organizations including the Human Rights Watch, the United Nations Human Rights Office of the High Commissioner, and smaller organizations such as CrisoSal, have expressed their disapproval with President Bukeles militarized tactics and violations to human rights. For the remainder of this paper we will explore the means in which both El Salvador and the United States have used States of Exception to detain and imprison Salvadoran citizens.

​Detention Facilities in the United States

The living conditions in the Migrant Detention Centers have become a growing concern and topic of discussion by Humanitarian organizations since the beginning of the Trump era. While the detention centers have existed since before president Barack Obama (2009-2017), it was not until Donald Trumps public xenophobic and openly racist remarks that migrant detention became a concern. In April of 2018, 2 years after his inauguration, the  Trump administration declared a “zero tolerance” policy on all unauthorized migrants attempting  to enter the United States (Refugees International, 2018). Under the zero tolerance policy, any persons attempting to cross the United States border would be detained and criminally prosecuted.

Though not clearly stated, this zero tolerance policy could be seen as a state of exception. Under the Geneva Convention, (Refugees International, 2018), Article 31, it states: “Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened…” (Refugees International, 2018). Given the  policy that persons attempting to cross the United States border would be detained and criminally prosecuted, its grounding conflicts with Article 31 of the Geneva Convention. This state of exception is similar to that of to Article 13 of the Geneva convention (UN, 1949), which was meant to protect Prisoners of War amidst the 9-11 bombing. However, under the Bush administration, all legal status of the prisoners of war from the Taliban captured in Afghanistan were erased.

What is most concerning about the Migrant Detention Centers is the living conditions in which children and adults are made to endure. Conditions at Customs and Border Protection facilities have been described using words such as “overcrowded”,“stench”,“cold”, and many other terms that refer to a facility as having vile living conditions. In May of 2019, Caitlin Dickerson of the New York Times reported, “the inspector general for the Department of Homeland Security warned of “dangerous overcrowding” among adult migrants housed at the border processing center in El Paso, with up to 900 migrants being held at a facility designed for 125. In some cases, cells designed for 35 people were holding 155 people.” (Dickerson, 2019). Detained asylum seekers are living in conditions that are well past their capacity. They have reported a lack of medical care, obstacles when receiving care, poor hygiene and restricted area for movement and social distancing amidst the Covid-19 pandemic (Dickerson, 2019). In the midst of this overcrowding are children and adults. Children as young as 7 and 8 years of age are made to care for other infants and toddlers they are not related to (Dickerson, 2019). These same children are said to be wearing clothes covered in snot and tears, caring for toddlers without diapers. Young mothers with shirts stained of breast milk (Dickerson, 2019). Young detainees have little to no access to showers, toothbrushes, toothpaste, and even soap.

​Issue at Hand

Given our previous discussion, we can now begin to understand how both the issue in El Salvador regarding the imprisonment of gang members in overcrowded, poorly run prisons and the United States detention of migrants in overcrowded, poorly run detention centers both are states of exception. The purpose of this comparative analysis will be to examine how both in the United States and El Salvador, these states of exception are used to control its population. When looking at the history of El Salvador and the United States, it is interesting to see how despite the conflicted history given the Salvadoran Civil War and all other U.S intervention, their means of control and approaches to imprisonment are similar.

A State of Exception refers to a process by which the government allows the rule of law to be dismissed in the name of a specific cause or issue (in the name of the public good). In the present constitution of the United States, the state of exception is regulated by Article 16. Which established that the president of the republic can take any necessary measures when the “institutions of the republic, the independence of the nation, the integrity of the territory, or the execution of its international commitments are seriously and immediately threatened” (Agamben, 2008). In El Salvador, the rising violence perpetuated by the Mara Salvatrucha was in this case “ [threatening]  the integrity of the territory (Agamben, 2008). In the United States, it was the rising rates of migration from countries like El Salvador, Guatemala, Honduras, Haiti, and Mexico that called for a state of exception under “the independence of the nation, the integrity of the territory” (Agamben, 2008). However, as we see similarly to the issue of Prisoners of War (POW), both prisoners in El Salvador and asylum seekers in the United States are having their human rights violated.
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The state of exception is being used by both countries as a tool of control and making the leaders of each country seem more fearful and dominant. Looking at Nayib Bukele, his population is torn in two. On one hand, we have citizens who are devoted to him for obvious reasons and on the other hand, there are citizens who disagree with him for other obvious reasons. We as a society can begin to applaud how safe he has made El Salvador, but not without looking at the means to which he is doing so. Similar to President Joe Biden, many applaud him not only for enacting change but for holding office instead of his former counterpart. However, under the Biden administration, immigration detention has increased 50% (Garcia, 2021). When examining the issues at hand, we must put aside politicking, the action of trying to persuade or force others to vote for a particular political party or candidate, and view the state of exception as its own entity.

As Caitlin Dickerson of the New York Times reported, “the inspector general for the Department of Homeland Security warned of “dangerous overcrowding” among adult migrants housed at the border processing center in El Paso, with up to 900 migrants being held at a facility designed for 125. In some cases, cells designed for 35 people were holding 155 people.” (Dickerson, 2019). This overcrowding is not only making the living conditions more uncomfortable than they are, but given the circumstances under the Covid-19 pandemic, restricts the amount of space a person has to social distance.

​El Salvador is not far behind in overcrowding. According to photographer Tariq Zaidi who spent two years documenting conditions in El Salvador's prisons before the coronavirus outbreak spread to the Central American nation, El Salvador's prisons have a capacity of “18,051 but the system currently holds more than 38,000 inmates.” (Zaidi, 2020). Prisoners are living in extreme heat, unsanitary conditions and an outbreak of tuberculosis (Zaidi, 2020) which has already claimed the lives of many inmates before the Covid-19 pandemic.

​We see in both cases of El Salvador and the United States that this “Zero-Tolerance Policy” enacted by both former President Donald Trump and Salvadoran president Nayib Bukele serves as a State of Exception that keeps its population under a certain control. Nayib Bukele, has voiced his control loudly. On April 5th, just one month after the initial state of exception of El Salvador, President Nayib Bukele threatened to stop providing meals to those in prison if their gang affiliations continued to commit crimes. At the time, there were rumors that gangs wanted to take revenge on random, and honest people. In which Nayib Bukele responded with “If they do that, there won’t even be one meal in prisons. I swear to God they won’t eat a grain of rice, and let’s see how long they last.” (AP, 2022). This serves as one example of how under the state of exception in El Salvador, President Nayib Bukele has used the circumstances to enforce control.

While President Biden has not declared any threats, similar to those of Nayib Bukele, to the people in detention centers, families continue to be separated. Adults and children continue to die in these detention centers, get sick, and live in poor conditions. The circumstances in which people are living in El Salvador's prisons and the detention centers in the United States are evidently similar. While both hold different populations with different pasts and track records, both are overcrowded and unsanitary.

​Significance
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Though both institutions hold very different populations, it is important that we look at both circumstances in terms of humanitarian rights and constitutional foundations being broken for the sake of a “State of Exception”. In the detention centers, given the  policy that persons attempting to cross the United States border would be detained and criminally prosecuted, its grounding conflicts with Article 31 of the Geneva Convention. In El Salvador, the rising violence perpetuated by the Mara Salvatrucha was in this case “ [threatening]  the integrity of the territory (Agamben, 2008). We also see that given the prior examples of living conditions, both sets of prisoners are being stripped of their humanitarian rights.
The Salvadoran state of emergency and zero-tolerance policy has not only suspended constitutional guarantees, but has eliminated legal administrative process for the use of public funds and the right of access to public information (WOLA, 2022). Alleged gang members are being rounded up without any questions asked. According to the Human Rights Watch and Cristosal, 90 people have died in custody during the state of emergency. Due to a lack of medical care and unsanitary living conditions (Pappier, 2022). Bukeles assembly even enacted a counterterrorism legislation that violate basic rights, including allowing judges and prosecutors to jail children ages 12 and above (Pappier, 2022). Police officers and soldiers have conducted raids in low-income neighborhoods, arresting over 58,000 people, including more than 1,600 children.

The U.S state of emergency and zero-tolerance policy has also gone against Article 31 and Article 13 of the Geneva Convention. It treats the people in detention centers as prisoners and has continuously sparked conversations amongst human rights organizatoins. Though the states of exception are being applied as a tool of governing, the means to which it is being done has its concerns. Organizations like Cristosal, Human Rights Watch, the United Nations Human Rights Office of the High Commissioner. Many of these organizations are demanding change. Cristosal and the Washington Office on Latin America (WOLA) believe that the Salvadoran government respect human rights and not to use the state of exception indefinitely as well as “cease the abuse of public force and human rights violations against the population” (WOLA, 2022), and urge the Legislative Assembly not to continue to approve extensions to the state of emergency.

In the United States, human rights organizations including the Human Rights Watch, United Nations Human Rights Office of the High Commissioner (OHCHR), CISPES, Immigrantjustice.org, etc., have all expressed their concerns and need for change and the shutting down of detention centers. When examining these organizations we must set aside political opinions and look at the issue at hand. Many recommendations can be made to both the situation of detention centers and prisons but ultimately, the decision making will continue to be made under a state of exception that may otherwise harm peoples rights. The way we begin to look at the state of exception is by looking at it through a partisan position

​Conclusion

Overall, we see how both El Salvador and the United States have relied on states of exception as a tool used to maintain power. Using the framework of the philosophical writings of Giorgio Agamben, we were able to analyze how these countries have violated existing constitutional rights in order to protect the integrity of their countries. Moving forward, human rights organizations can continue to voice their concerns with the wrong doings of the countries. Despite their conflicting history, both the United States and El Salvador are running facilities that are not capable of holding human lives. More importantly, looking at both issues through a transborder perspective we can use our knowledge of states of exception to understand the political doings of outside countries like El Salvador.

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