50
Chapter 1
of a “pessimism of strength” provides an important insight into this way of
seeing.85 Like Fanon, Nietzsche describes a pessimism that is geared toward
transformation, not resignation. It allows for the possibility that the emancipatory potential of the Human could be salvaged from the wreckage of
history, and that even if this is not possible, then the Human will have to be
replaced by something better. But one thing that this ethos of transformation
does not tolerate is optimism that refuses to allow its ideals to be interrogated
in light of the actually existing reality that they have helped to create. This
means that Fanon’s appeal to Humanity will have to face up to its complicity in creating an antiblack reality if it has any role to play in the process of
black liberation. This is the same challenge that I am going to pose to the US
legal system with my analysis of the government’s Haitian refugee policies.
Copyright © 2022. Lexington Books. All rights reserved.
NOTES
1. William Wells Brown, Narrative of William W. Brown, a Fugitive Slave.
Written by Himself (Boston: The Anti-Slavery Office, 1847), 28–29.
2. Historians and literary scholars have raised questions about the authenticity
of these narratives, many of which were heavily edited for a white, reading public
by white liberal intellectuals with a specific ideological agenda. For one account of
how scholars have struggled with these issues, see Lawrence Aje, “Fugitive Slave
Narratives and the (Re) presentation of the Self? The Cases of Frederick Douglass and
William Brown,” L’Ordinaire Des Amériques 215 (2013): 1–45. Having acknowledged these problems, it is still possible to use these stories as a window into the
brutalities of the slave trade. Saidiya Hartman’s reflections on how to contextualize
these narratives in tandem with other texts are very instructive and similar to the
approach I take in this book. See Saidiya Hartman, Scenes of Subjection (Oxford:
Oxford University Press, 1997), 10–13.
3. P. Khalil Saucier and Tryon Woods, “Introduction: Racial Optimism and the
Drag of Thymotics,” in Conceptual Aphasia in Black, eds. P. Khalil Saucier and
Tryon Woods (Lanham, MD: Lexington Press, 2016), 1–34; Jared Sexton, “The
Social Life of Social Death: On Afro-Pessimism and Black Optimism,” In/Tensions
Journal 5 (2011): 1–47.
4. See the account of the public uses of William Brown’s narrative in Aje,
“Fugitive Slave Narratives and the (Re) presentation of the Self?,” 35–44.
5. Ronald Judy, (Dis)forming the American Canon: African-Arabic Slave
Narratives and the Vernacular (Minneapolis: University of Minnesota Press, 1993),
50–53.
6. Ibid.
7. Guantanamo Public Memory Project, “Natalie and Gregory Beau Brun: At
Guantanamo, 1992,” New York: Columbia University’s Institute for the Study of
Human Rights, accessed September 24, 2021, https://gitmomemory​.org​/stories​/natalie​-and​-gregory​-beaubrun/.
Kretsedemas, Philip. <i>Black Interdictions : Haitian Refugees and Antiblack Racism on the High Seas</i>. Lanham: Lexington
Books, 2022. Accessed January 28, 2023. ProQuest Ebook Central.
Created from ucb on 2023-01-28 02:02:07.
Copyright © 2022. Lexington Books. All rights reserved.
Navigating the Chasm
51
8. Ibid.
9. Harold Koh and Michael Wishnie, “The Story of Sale v. Haitian Centers
Council: Guantanamo and Refoulement,” in Human Rights Advocacy Stories, eds.
Margaret Satterthwaite and Deena Hurwitz (Eagan, MN: Westlaw and Foundations
Press, 2008), 385–432 at 394–395.
10. Wilkine Brutus, A Boat Voyage: A Haitian Refugee Story, “Episode 1 - Child
of the Sea: Haiti to Cuba,” May 3, 2018, accessed September 26, 2021, https://www​
.himalaya​.com​/album​/a​-boat​-a​-voyage​-a​-haitian​-refugee​-story​-1760211.
11. Gregory Jaymes, “Thirty-three Haitians Drown as Boat Capsizes Off Florida,”
New York Times, October 7, 1981, accessed September 26, 2021, https://www​
.nytimes​.com​/1981​/10​/27​/us​/33​-haitians​-drown​-as​-boat​-capsizes​-off​-florida​.html.
12. This policy history is discussed in chapters 2 and 3, focusing on the mandatory
detention practices that were introduced by the late Carter-era “Haitian program.”
13. Paul Gilroy, The Black Atlantic: Modernity and Double Consciousness
(Cambridge, MA: Harvard University Press, 1993); Julius Scott, The Common Wind:
Afro-American currents in the age of the Haitian Revolution (New York: Verso,
2018).
14. Calvin Warren, Ontological Terror: Blackness, Nihilism and Emancipation
(Durham, NC: Duke University Press, 2018), 78–83, 131–142.
15. Daniel Kanstroom, Deportation Nation (Cambridge, MA: Harvard University
Press, 2009), 76; Scott, The Common Wind, 190–192.
16. Joanne Van Selm, Betsy Cooper and Kathleen Newman, The New “Boat
People”: Ensuring Safety and Determining Status (Washington, DC: Migration
Policy Institute, 2006) at 71.
17. See Fred Kaplan, Lincoln and the Abolitionists (New York: HarperCollins,
2017). The history of this body of opinion is discussed in more detail in chapter 2.
18. Mark Dow, American Gulag: Inside US Immigration Prisons (Berkeley,
CA: University of California Press, 2005); Naomi Paik, “Carceral Quarantine at
Guantanamo Legacies of US Imprisonment of Haitian Refugees, 1991–1994,”
Radical History Review 115 (2013): 142–168.
19. Harold Koh, “The Human Face of the Haitian Interdiction Program,” Virginia
Journal of International Law 33 (1993): 483–490 at 488–489. Naomi Paik has
provided more context on this callous treatment, which shows that US policy and
administrative opinion toward the detainees was premised on the assumption that they
were fated to “die soon,” regardless of how well they were cared for. Paik. “Carceral
Quarantine at Guantanamo.”
20. For one of the few macro-historical, cross-national accounts of the history of
seasonal and circular migrations, see Saskia Sassen, Guests and Aliens (New York:
New Press, 1999).
21. For some examples, see Ajaya Sahoo, Dave Sangha, and Melissa Kelly, “From
‘Temporary Migrants’ to ‘Permanent Residents’: Indian H-1B Visa Holders in the
United States,” Asian Ethnicity 11, no. 3 (2010): 293–309; Nina Glick Schiller, Linda
Basch, and Cristina Szanton Blanc, “From Immigrant to Transmigrant: Theorizing
Transnational Migration,” Anthropological Quarterly 68, no. 1 (1995): 48–63;
Robert Smith, Mexican New York (Berkeley: University of California Press, 2006);
Kretsedemas, Philip. <i>Black Interdictions : Haitian Refugees and Antiblack Racism on the High Seas</i>. Lanham: Lexington
Books, 2022. Accessed January 28, 2023. ProQuest Ebook Central.
Created from ucb on 2023-01-28 02:02:07.
Copyright © 2022. Lexington Books. All rights reserved.
52
Chapter 1
Leah Vosko, Valerie Preston, and Robert Latham, eds. Liberating Temporariness?:
Migration, Work, and Citizenship in an Age of Insecurity (Montreal: McGill-Queen’s
Press, 2014).
22. Barzoo Eliassi, “Statelessness in a World of Nation-States: the Cases of
Kurdish Diasporas in Sweden and the UK,” Journal of Ethnic and Migration Studies
42, no. 9 (2016): 1403–1419; Abul Hasnat Milton et al., “Trapped in Statelessness:
Rohingya refugees in Bangladesh,” International Journal of Environmental Research
and Public Health 14, no. 8 (2017): 942.
23. Justine Dandy and Rogelia Pe-Pua, “The Refugee Experience of Social
Cohesion in Australia,” Journal of Immigrant & Refugee Studies 13, no. 4 (2015):
339–357; Ransford Danso, “From ‘There’ to ‘Here’: An Investigation of the Initial
Settlement Experiences of Ethiopian and Somali Refugees in Toronto,” GeoJournal
56, no. 1 (2002): 3–14; Linh Nghe, James Mahalik, and Susana Lowe, “Influences
on Vietnamese Men: Examining Traditional Gender Roles, the Refugee Experience,
Acculturation, and Racism in the United States,” Journal of Multicultural Counseling
and Development 31, no. 4 (2003): 245–261.
24. Reza Barmaki, “Criminals/Refugees in the Age of Welfareless States:
Zygmunt Bauman on Ethnicity, Asylum and the New ‘Criminal,’” International
Journal of Criminology and Sociological Theory 2, no. 1 (2009): 251–226; Mark
Duffield, “Racism, Migration and Development: The Foundations of Planetary
Order,” Progress in Development Studies 6, no. 1 (2006): 68–79; Liz Fekete,
“The Emergence of Xeno-Racism,” Race & Class 43, no. 2 (2001): 23–40; Nikos
Papastergiadis, “The Invasion Complex: The Abject Other and Spaces of Violence,”
Geografiska Annaler. Series B, Human Geography 88, no. 4 (2006): 429–442.
25. Deirdre Conlon, “Becoming Legible and ‘Legitimized’: Subjectivity and
Governmentality Among Asylum Seekers in Ireland,” in Migrant Marginality: a
Transnational Perspective, eds. P. Kretsedemas, J. Capetillo and G. Jacobs (New
York: Routledge, 2013), 186–204.
26. Andreas Wimmer and Nina Glick Schiller, “Methodological Nationalism
and Beyond: Nation–State Building, Migration and the Social Sciences,” Global
Networks 2, no. 4 (2002): 301–334.
27. Zygmunt Bauman, Liquid Modernity (New York: Polity, 2000); Duffield,
“Racism, Migration and Development: The Foundations of Planetary Order”; Saskia
Sassen, Globalization and Its Discontents (New York: New Press, 1999).
28. Duffield, “Racism, Migration and Development.”
29. Ronen Shamir, “Without Borders? Notes on Globalization as a Mobility
Regime,” Sociological Theory 23, no. 2 (2005): 197–217.
30. Saucier and Woods, “Ex Aqua”; Jared Sexton, “People of Color Blindness:
Notes on the Afterlife of Slavery,” Social Text 103, no. 28:2 (2010): 31–53.
31. Michael Omi and Howard Winant, Racial Formation in the United States, 3rd
ed. (New York: Routledge, 2014).
32. This argument presents a different way of getting at a comparable point made
by other scholars, who have raised concerns about the way racial formation theory
emphasizes the fluidity of race and understates the durability of whiteness and antiblackness. See Joe Feagin and Sean Elias, “Rethinking Racial Formation Theory: A
Kretsedemas, Philip. <i>Black Interdictions : Haitian Refugees and Antiblack Racism on the High Seas</i>. Lanham: Lexington
Books, 2022. Accessed January 28, 2023. ProQuest Ebook Central.
Created from ucb on 2023-01-28 02:02:07.
Copyright © 2022. Lexington Books. All rights reserved.
Navigating the Chasm
53
Systemic Racism Critique,” Ethnic and Racial Studies 36, no. 6 (2013): 931–960;
Saucier and Woods, “Introduction: Racial Optimism and the Drag of Thymotics.”
33. In the early colonial period, “race” was understood to be a civilizational
quality specific to Europeans that was absent among indigenous African peoples.
Black Africans were not viewed as an “alien race” but as “nonpeoples” who were
incapable of producing a “racial identity.” See Mahmood Mamdani, When Victims
Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton:
Princeton University Press, 2001), 3–20. This argument is broadly consistent with
the Afropessimist thesis on the deontological status of blackness in relation to white
European culture. See Sexton, “The Social Life of Social Death”; Sebastian Weier,
“Consider Afro-Pessimism,” Amerikastudien/American Studies 59, no. 3 (2014):
419–433; Wilderson, “The Prison Slave as Hegemony’s (Silent) Scandal.”
34. Sexton, “The Social Life of Social Death,” n1 at 37.
35. A good example being the UNHCR’s annual report on global displacement.
See UNHCR, “Global Trends in Forced Displacement, 2019,” accessed November
29, 2020. https://www​.unhcr​.org​/globaltrends2019/.
36. Stateless and displacement are sometimes referenced interchangeably but,
under international law, they describe categorically different situations and are
enumerated separately in the statistics gathered by the UNHCR (“Global Trends
in Forced Displacement 2019”). The stateless person is not recognized as a citizen
by any nation but is not necessarily displaced. Displaced people, on the other hand,
enter into a de facto condition of statelessness when they are forced to flee their home
nation (or even if they become internally displaced), but it is presumed that they will
be able to reclaim their status, as citizens of their home nation.
37. See Hartman, Scenes of Subjection; Saucier and Woods “Ex Aqua”; Sexton,
“The Social Life of Social Death”; Weier, “Consider Afro-Pessimism”; Wilderson,
“The Prison Slave, Hegemony’s (Silent) Scandal.”
38. Patricia Tuitt, Race, Law, Resistance (New York: Taylor & Francis Group,
2004), 1–20.
39. Ibid., 2.
40. Most of the decisions that were sympathetic to Haitian refugees were issued
by District Courts, which include cases like Haitian Refugee Ctr. v. Civiletti, 503 F.
Supp. 442 (S.D. Fla. 1980) and Louis v. Nelson, 544 F. Supp. 973 (S.D. Fla. 1982)
which contested policies implemented prior to the Reagan-era interdictions, and
decisions issued in the interdiction era itself, such as Haitian Centers Council, Inc. v.
McNary, 807 F. Supp. 928 (E.D.N.Y. 1992). The Second Circuit Court’s decision on
Haitian Centers Council, Inc. v. Mc Nary (969 F.2d 1350 [1992]) is the only occasion at which an appellate level court issued a decision that is strongly sympathetic
toward the cause of the refugees and bolstered the sympathetic arguments of a lower
court decision. All other circuit court decisions erred in favor of the government’s
justification for the interdictions, with the Supreme Court being the most consistently
supportive of the government’s position. See chapters 4 and 5 for a discussion of this
legal history.
41. Examples include the acknowledgment by the Eleventh Circuit Court appeals
that excludable aliens had a First Amendment right to legal counsel (Jean v. Nelson
Kretsedemas, Philip. <i>Black Interdictions : Haitian Refugees and Antiblack Racism on the High Seas</i>. Lanham: Lexington
Books, 2022. Accessed January 28, 2023. ProQuest Ebook Central.
Created from ucb on 2023-01-28 02:02:07.
Copyright © 2022. Lexington Books. All rights reserved.
54
Chapter 1
727 F.2d 957 [11th Cir. 1984]) and arguments on behalf of the Fifth Amendment, due
process rights of interdicted refugees that were issued in Haitian Centers Council,
Inc. v. McNary, 807 F. Supp. 928 (E.D.N.Y. 1992); Haitian Centers Council, Inc. v.
Mc Nary (969 F.2d 1350 [2nd Cir. 1992]).
42. Tuitt, Race, Law, Resistance, 4, 20. 55–70.
43. Ibid., 3.
44. Ibid., 3–4. Also see Michelle Alexander, The New Jim Crow: Mass Incarceration
in the Age of Colorblindness (New York: The New Press, 2010); Derrick Bell, Faces
at the Bottom of the Well (New York: Basic Books, 1992); Dorothy Roberts, Killing
the Black Body: Race, Reproduction, and the Meaning of Liberty (New York:
Vintage, 1998). This argument is also a running theme of the Afropessimist scholarship that I cite in this chapter.
45. Saucier and Woods, “Introduction: Racial Optimism and the Drag of
Thymotics.”
46. My treatment of Tuitt’s theory is also informed by Calvin Warren’s reading of
her work. Warren, Ontological Terror, 71–73.
47. Hartman, for example, credits Arendt for drawing attention to the “social
question” of American racism, and its roots in the transatlantic slave trade—though
she also goes on to critique the limitations of Arendt’s analysis of the social and its
relationship to the political sphere. Hartman, Scenes of Subjection, 169 and 242.
The analysis of the European colonization and its consequences for the political
dilemmas of the present day is also the running theme of Arendt’s work, which
continues to inform contemporary scholarship on race and nation. Hannah Arendt,
Crises of the Republic (New York: Harcourt & Brace, 1969), 58–62; The Origins of
Totalitarianism (New York: Harcourt Inc.: 1966), 123–304; Richard King and Dan
Stone eds., Hannah Arendt and the Uses of History: Imperialism, Nation, Race, and
Genocide (New York: Berghahn Books, 2007).
48. Arendt, Origins of Totalitarianism, 123–304.
49. For an example, see Ida Danewid, “White Innocence in the Black Mediterranean:
Hospitality and the Erasure of History,” Third World Quarterly 38, no. 7 (2017):
1674–1689.
50. Arendt, Origins of Totalitarianism, 185–221. Arendt’s discussion of “racethinking before racism” (which precedes this historiography and delves into a history
of “racialist” national ideologies in Europe that is divorced from an analysis of whiteness or blackness; Origins, 158–184) also inverts a persistent theme of Afropessimist
theory, which is that racism makes race. See Barnor Hesse, “Preface: Counter-Racial
Formation Theory,” in Conceptual Aphasia in Black: Displacing Racial Formation,
eds. P. Khalil Saucier and Tryon Woods (Lanham, MD: Lexington Press, 2016),
vii–xi.
51. Arendt, Origins of Totalitarianism, 191–207.
52. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford,
CA: Stanford University Press, 1998).
53. Frank Wilderson, Red, White, and Black: Cinema and the Structure of US
Antagonisms (Durham, NC: Duke University Press, 2010), 38–49.
54. Ibid., 39–40.
Kretsedemas, Philip. <i>Black Interdictions : Haitian Refugees and Antiblack Racism on the High Seas</i>. Lanham: Lexington
Books, 2022. Accessed January 28, 2023. ProQuest Ebook Central.
Created from ucb on 2023-01-28 02:02:07.
Copyright © 2022. Lexington Books. All rights reserved.
Navigating the Chasm
55
55. Arendt, Origins of Totalitarianism, 158–266.
56. Richard Hofstadter, Social Darwinism in American Thought (Boston: Beacon
Press, [1944] 1992); John Jackson, Nadine Weidman, Race, Racism and Science:
Social Impact and Interaction (Camden, NJ: Rutgers University Press, 2005).
57. Agamben, Homo Sacer.
58. Giorgio Agamben, State of Exception (Chicago: University of Chicago Press,
2005), 20–21.
59. Kristina Shull, “Nobody Wants These People: Reagan’s Immigration Crisis
and America’s First Private Prisons” (PhD Diss., University of California-Irvine,
2014), 51n31. Shull makes note of this silence in Aristide Zolberg’s A Nation by
Design (Cambridge, MA: Harvard University Press, 2009) and Daniel Kanstroom’s
Deportation Nation (Cambridge, MA: Harvard University Press, 2009); though her
observation could be applied to many other accounts of the rise of the post-Cold
War deportation regime, including Nicholas De Genova and Nathalie Peutz eds., The
Deportation Regime (Durham, NC: Duke University Press, 2010) which is framed by
an extensive discussion of Agamben’s theory of sovereign power and bare life.
60. Tuitt, Race, Law, and Resistance, 3.
61. Warren, Ontological Terror, 62–109.
62. Niklas Luhmann, Law as a Social System (Oxford: Oxford University Press,
2004).
63. Warren, Ontological Terror, 76–87.
64. For a discussion, see Ladelle McWhorter, Racism and Sexual Oppression in
Anglo-America: A Genealogy (Bloomington, IN: Indiana University Press, 2009),
82–86. For more context on the scientific racism of this era, which has influenced
by the treatises of natural philosophers like Blumenbach, Buffon, and Linneaus, see
Jackson and Weidman, Race, Racism and Science, 8–23.
65. McWhorter, Racism and Sexual Oppression in Anglo-America, 75–90.
66. Johann Herder, JG Herder on Social and Political Culture (Cambridge:
Cambridge University Press, 1969). Charles Taylor has, arguably, played the most
decisive role in bringing Herder’s theory back into the contemporary conversation
around culture and political community. See Isaiah Berlin, Philosophy in an Age of
Pluralism: The Philosophy of Charles Taylor in Question (Cambridge: Cambridge
University Press, 1994), 1–3.
67. Jackson and Weidman, Race, Racism and Science, 4–23.
68. Ibid., 7–12, 35–60.
69. Dred Scott v. Sandford 60 U.S. 393 (1856) as discussed by Warren, Ontological
Terror, 76–87.
70. Dred Scott, 60 U.S. 393 at 407–408 as quoted by Warren, Ontological
Terror, 82.
71. Dred Scott, 406 as quoted by Warren, Ontological Terror, 84.
72. Warren, Ontological Terror, 27–28, 65.
73. Dred Scott, 60 U.S. 393 at 406–408.
74. Agamben, Homer Sacer. It also bears noting that this predicament of being
abandoned by the law is very different than the injunction to abandon oneself to the
law, which as Warren explains (by way of the legal theory of Jean Luc Nancy) is an
Kretsedemas, Philip. <i>Black Interdictions : Haitian Refugees and Antiblack Racism on the High Seas</i>. Lanham: Lexington
Books, 2022. Accessed January 28, 2023. ProQuest Ebook Central.
Created from ucb on 2023-01-28 02:02:07.
Copyright © 2022. Lexington Books. All rights reserved.
56
Chapter 1
essential obligation of the citizen-subject. Abandoning oneself to the law is, effectively, the willingness to be wholly subjected to the sovereign desire that animates the
law. Through this act of abandonment, the citizen-subject affirms their place in the
social body in whose name the law is authorized to rule. Warren argues that the nothingness of blackness before the law makes such an act of abandonment impossible.
Put another way, black people cannot abandon themselves to the law because they
have, already in advance, been abandoned by the law—being illegible as a subjects
of the law. Warren, Ontological Terror, 63–71.
75. Warren, Ontological Terror, 77–79.
76. This being the Circuit Court of the District of Maryland; Dred Scott, 60 U.S.
393 at 423.
77. This argument is encapsulated by Dred Scott, 480–485, but it bears noting the
jurisdictional argument is a running theme of the entire decision. Also see Warren,
Ontological Terror, 80–82.
78. Dred Scott, 397–399.
79. I discuss this case history in more detail in chapter 2, focusing on cases in
which the Supreme Court evoked the federal supremacy clause to overrule local laws
restricting the right of noncitizens. Some noteworthy examples of these nineteenthcentury decisions which favored both white and Chinese noncitizen plaintiffs include
Martin v. Hunter’s Lessee 14 U.S. 304 (1816); Chy Lung v. Freeman 92 U.S. 275
(1875); and Yick Wo v. Hopkins 118 U.S. 356 (1886).
80. This is a summary of patterns in federal court opinion that are examined in
more detail in chapters 2–6 and are of special relevance to the following cases: Jean
v. Nelson, 472 U.S. 846 (1985); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479
(1991); Cuban American Bar Association v. Christopher, 43 F.3d 1412, 1419 (11th
Cir.).
81. Fred Moten, “Blackness and Nothingness,” The South Atlantic Quarterly 112,
no. 4 (2013): 737–780.
82. Bell, Faces at the Bottom of the Well.
83. Fanon, Black Skin, White Masks, 222.
84. Madhu Dubey, “The ‘True Lie’ of the Nation: Fanon and Feminism,”
Differences 10, no. 2 (1998): 1–12.
85. For a discussion, see Joshua Dienstag, “Nietzsche’s Dionysian Pessimism,”
American Political Science Review 95, no. 4 (2001): 923–937. This proposition also
has to be read in light of Nietzsche’s theory of health, which does not reduce to a
conventional physiological or psychological diagnosis. Deleuze is a guide here; see
Gilles Deleuze, Pure Immanence: Essays on a Life (New York: Zone Books, 2005),
53–102.
Kretsedemas, Philip. <i>Black Interdictions : Haitian Refugees and Antiblack Racism on the High Seas</i>. Lanham: Lexington
Books, 2022. Accessed January 28, 2023. ProQuest Ebook Central.
Created from ucb on 2023-01-28 02:02:07.