PROTECTING THE NATION FROM "HONOR KILLINGS": THE CONSTRUCTION OF A PROBLEM.

• Author: Volpp, Leti
• Position: Symposium: The Constitution in the Age of Trump

INTRODUCTION

On January 27, 2017, seven days after his Presidency began, Donald Trump issued an executive order titled "Protecting the Nation from Foreign Terrorist Entry into the United States" (hereinafter, "EO-1"). (1) The order invoked the terrorist attacks of September 11, 2001, and indicated that the United States sought to "prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes." (2) In order to accomplish that goal, EO-1 temporarily suspended the entry of noncitizens from seven countries, temporarily suspended the U.S. refugee program, and indefinitely suspended the entry of any Syrian refugees. (3)

Mass chaos ensued, as travelers were turned away from flights to the United States, stranded overseas while in transit, and detained upon arrival at U.S. airports. (4) Amid the outcry about EO-1, observers missed a curious fact. Overlooked by most was the fact that the text of EO-1 twice invoked the idea of "honor killings"--first, by identifying "honor killings" as a problematic practice by "foreign nationals" condemned in the Purpose section of the Order, and, second, by mandating data collection and reporting about "honor killings." (5)

In March, 2017, facing a losing battle to defend EO-1 in the courts, the Trump administration replaced EO-1 with Executive Order No. 13780, bearing EO-1's identical title of "Protecting the Nation from Foreign Terrorist Entry into the United States" (hereinafter, "EO-2"). (6) The Purpose section of EO-2 was stripped of any reference to "honor killings," but EO-2 retained the mandate for data collection and reporting about "honor killings." On September 24, 2017, the Trump administration once again revised its approach in the face of legal challenges by issuing a Presidential Proclamation (hereinafter, "EO-3"), which replaced most but not all of EO-2. While EO-3 made no reference to "honor killings" in its text, it left the mandate for data collection and reporting on "honor killings" of EO-2 intact. (7) On June 26, 2018 the Supreme Court upheld EO-3 in a split 5-4 decision. (8)

Why did "honor killings" appear in these executive orders? What is accomplished by invoking "honor killings"? And how have "honor killings" been constituted as a problem for U.S. governance? An initial answer to these questions can be gleaned from the social, political, and legal uses of the phrase "honor killings," a term taken to refer to "the killing of a woman by her relatives for violation of a sexual code in the name of restoring family honor." (9)

The use of the term to isolate one form of gender-based violence as distinct from other forms is hotly contested, and has been criticized as assisting in the portrayal of only certain communities as sites of aberrant violence. (10) As Lila Abu-Lughod explains, "honor killings" are marked as "culturally specific," as "distinct from other widespread forms of domestic or intimate partner violence," and are constantly associated with reports from the Middle East and South Asia or immigrant communities originating from those regions. (11) This division of "honor killings" from other forms of gendered violence reflects the way in which motivation for acts of gender-based violation is selectively narrated through the media and public discourse, so that different explanations are proffered, depending upon the identity of the perpetrator.

Bad acts by immigrant communities tend to be attributed to culture, as opposed to bad acts by white Americans, which are usually described as either the product of individual deviancy or psychological factors. (12) These explanatory choices mask the entrenchment of gendered violence in U.S. culture: we could look to the facts that adultery has often been proffered by American jurists as the paradigm example of provocation, and that men are more likely than women in the United States to claim a "heat-of-passion" defense with regard to the killing of their spouses. (13) The term "honor killing" thus circulates as what Inderpal Grewal calls a "media-ted" concept, which both diagnoses the nature of a crime and its solution as confined to certain communities, following a racial logic. (14) Discursively, '"honor killings' work as a 'comforting phantasm,'" (15) juxtaposing an "assumed gender inequality and oppression of women by Islam" with a "quintessentially American gender-egalitarianism and respect for women's rights." (16) They help create an illusion that only some communities engage in violence against women, since "modern" societies are thought to be sites where such violence only occurs when perpetrated by immigrants. (17)

On these readings, the use of the phrase "honor killings" in the executive orders can be understood as evincing a professed concern for violence against women, while actually functioning to reinforce a perception of Muslim barbarity and inferiority. The invocation of "honor killings" thus functions as the kind of coded signal called a "dog whistle," purporting to convey one message while in fact communicating another to those who are aware of the speaker's true intent. (18) This cynical deployment of feminist concerns as a proxy for xenophobic exclusion is troubling enough.

But what may be even more disturbing is that the notion that "honor killings" are a problem in the United States has been constructed through false and misleading claims about data. As explained further below, the idea that there are "23-27 honor killings" occurring annually in the United States was circulated by former Attorney General Jeff Sessions when he was a Senator, and is expressed in the report produced by the Departments of Justice and Homeland Security in response to the transparency and data collection mandate of EO-2. A concerted campaign led by the AHA Foundation, which worked vigorously to generate concern among academic and political circuits about "honor killings" as a phenomenon, produced this figure, which is both invalid and misreported. (19)

In what follows, I first briefly explain the legal backdrop of EO-1, EO-2 and EO-3. I then focus on the role of "honor killings" in EO-1 and EO-2, as well as in legal strategy, and judicial decisions. Next, I examine how "honor killings" functioned in the context of Trump's speeches, which constitute a kind of "legislative history" of the executive orders. I then sketch a genealogy of how "honor killings" became a focus of U.S. governance, to explain how this as an issue managed to appear in these key public articulations of the Trump administration, as concretized through an annual rate of death that is in fact imagined.

While we do not know who specifically inserted the "honor killing" provisions into the executive orders, White House advisors Stephen Miller and Steve Bannon were described as primarily involved in EO-1's development. (20) Regardless of who authored EO-1 and EO-2, the idea that Muslim women are particularly oppressed now appears in U.S. discourse as a kind of common sense. (21) The project of "saving women" is knitted into Islamophobia in the United States, with the literal barring of Muslim bodies from entering the United States in the name of purportedly protecting Muslim women from violence.

1. LEGAL BACKGROUND

   EO-1 sought to suspend the entry of immigrants and nonimmigrants (temporary visitors) from seven countries--Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen--for a period of ninety days. Syrian refugees were to be indefinitely barred from the United States, while refugee admissions in general were to be suspended for 120 days. Once refugee admissions were to be resumed, refugees from "minority religions" were to be given priority, which Trump announced on the Christian Broadcasting Network was intended to assist persecuted Christians. (22) Critics quickly labeled EO-1 a Muslim ban, as the manifestation of Trump's campaign promise to create such.

   After several lawsuits challenging the constitutionality of EO-1 were filed, leading to multiple provisions of EO-1 being barred from implementation, the Trump administration issued EO-2. (23) While EO-2 deleted several of EO-1's provisions in an attempt to immunize the administration from legal challenge, including the language prioritizing refugee claimants from "minority religions," as well as the indefinite bar preventing entry by Syrian refugees, critics quickly labeled EO-2 "Muslim Ban 2.0," signifying that it continued EO-1's project of seeking to bar Muslims from entering the United States. (24) EO-2 was attacked in the courts as violating both the U.S. Constitution and the federal Immigration and Nationality Act, culminating in a brief and unsigned decision issued on June 26, 2017, by the Supreme Court. (25) This decision both promised to review the rulings by lower courts once the Supreme Court's October 2017 term commenced, and also allowed the ban to be implemented against those without a "bona fide relationship" to a person or entity in the United States.

   On September 24, 2017, the Trump administration once again attempted to rewrite its ban in order to withstand legal challenges. (26) This appeared in the form of a Presidential Proclamation ("EO-3"). Critics called this Proclamation "Muslim Ban 3.0," as it indefinitely suspended the entry of particular groups of individuals from several countries--continuing the ban on Iran, Libya, Somalia, Syria, and Yemen, while also newly adding Chad, North Korea, and Venezuela to the list. (27) This action led the Supreme Court to strike the challenges to EO-2 from the docket. Challenges to EO-3 were immediately filed, leading to district court judges in Hawai'i and Maryland partially blocking EO-3's enforcement bars on Iran, Libya, Somalia, Syria, Yemen, and Chad. (28) On December 4, 2017, those injunctions were lifted by the Supreme Court, and EO-3 has been in effect since that time. On June 26, 2018 the Supreme Court upheld EO-3. In a 5-to-4 vote, a majority of the...