The Intercept reports:

Inside a federal immigration courtroom in New York City last month, a judge took an exceedingly unusual step: declining to state the name of the Immigration and Customs Enforcement attorney pressing to deport asylum seekers.

“We’re not really doing names publicly,” said Judge ShaSha Xu — after stating her own name and those of the immigrants and their lawyers. It was the first of two separate instances The Intercept identified in which judges chose to withhold the identities of the attorneys representing the Trump administration’s deportation regime.

As ICE agents across the country wear masks to raid workplaces and detain immigrants, government attorneys need not cover their faces to shield their identities. Legal experts who spoke to The Intercept agreed the practice of concealing the lawyers’ identities was both novel and concerning.

“I’ve never heard of someone in open court not being identified,” said Elissa Steglich, a law professor and co-director of the Immigration Clinic at the University of Texas at Austin. “Part of the court’s ethical obligation is transparency, including clear identification of the parties. Not identifying an attorney for the government means if there are unethical or professional concerns regarding [the Department of Homeland Security], the individual cannot be held accountable. And it makes the judge appear partial to the government.”

The concealment shocked two lawyers who were representing immigrants in Xu’s courtroom. Attorney Jeffrey Okun, who was representing a client via video call, characterized the move as “bizarre.” Attorney Hugo Gonzalez Venegas called Xu’s behavior “a terrible lack of transparency on the part of officers of the court.”

Immigration courts, which are run by the Executive Office for Immigration Review — part of the executive branch, not the judiciary — are far less transparent than most courts. Their prosecutors work for ICE and DHS; they have no obligation to provide defense lawyers; and their judges are appointed — and fired — by the president. [Continue reading…]

Austin Sarat writes:

In the Middle Ages and early modern England, the king’s justice was often arbitrary and carried out in secret, in so-called Star Chamber proceedings. In those proceedings, officials known for their loyalty to the sovereign heard cases involving criminal offenses and acts defying the king’s proclamations.

The Star Chamber courts were not governed by ordinary law. They did not accord people accused of crime the kinds of protections that were available in the regular, public court system.

Secret, quick and unencumbered by procedures to safeguard rights, Star Chamber proceedings may have served the king’s justice, but they stoked public resentment. In 1641, they were abolished by an act of Parliament.

But what happened last week in Sacramento’s Immigration Court suggests that the Star Chamber may be making a comeback under the Trump Administration. The Sacramento Bee reports that federal authorities “restricted public access to the building, amid a week of heightened scrutiny and local protests against the Trump administration’s immigration enforcement tactics statewide.”

“Security guards barred entry to the head of a legal organization, volunteers seeking to accompany immigrants to hearings and reporters from accessing the courthouse near the state Capitol,” wrote Bee reporters Stephen Hobbs and Sharon Bernstein.

There is a legal and political maxim that seems applicable here. Secrecy breeds suspicion. And, in the words of Supreme Court Justice Louis Brandeis, “Sunlight is said to be the best disinfectant.”

Barring access to a courthouse or a courtroom runs up against a long-standing American tradition favoring public justice. Judges have said that “open access to the courts is grounded in our common law heritage and our national and state constitutions. For centuries, publicity has been a check on the misuse of both political and judicial power.”

“Proceedings cloaked in secrecy,” they note, “foster mistrust and, potentially, misuse of power.” [Continue reading…]