No secret courts: Closing immigration court access another due process blow

In this country, courts are open to the public and that includes immigration court, so federal officials must not bar the doors. Yet, that is happening, in an affront to the concept of transparent proceedings.

This week, Homeland Security agents and the NYPD made arrests of protesters and legal observers. When a journalist, Gothamist reporter Arya Sundaram, sought to watch the hearings, she was refused and told her that she that had “no business” in the public court.

We wonder how a lot of Republican officials and Trump world figures would’ve reacted a year ago to the idea of secret trials from which people can be disappeared without a trace as friends, family and the press are kept outside, waiting. And let’s be clear that what we’re talking about here is in fact an attempt to have a secret justice system, patrolled by a form of masked police with hidden identities and no desire or mandate to answer questions.

The Sixth Amendment specifically guarantees a “right to a speedy and public trial” in criminal prosecutions because the Framers understood that the alternative is no real form of justice at all. As civil cases, immigration hearings don’t strictly fall under the Amendment’s purview, but as a matter of law and practice have long been presumptively open to the public. It’s how we know, for example, the very weak arguments that the government has been rolling out in Mahmoud Khalil’s deportation proceedings in Louisiana.

There are extremely limited circumstances under which hearings can be closed, none of which appear to have been met here. It’s bad enough that the immigration courts generate almost no paper trail, without any online or on-paper records that can be perused by advocates, journalists and researchers in the same way they can for other federal civil and criminal matters.

The reason administrators suddenly seem so preoccupied with who can observe the immigration courts is because they know full well that what they’re doing is both immoral and counter to the spirit of due process and the law.

The folks showing up to these courts are doing so precisely because they’ve been instructed to by the government itself, on the promise that they will have a fair opportunity to present a case for asylum or other protection. The government is robbing them of that opportunity, and in so doing also helping ensure that others won’t seek to go through the legal process at all. That’s fine by an administration that seems basically contemptuous of the very concept of due process.

Once more, we must remind readers who think that this is something that won’t touch them that this administration — and practically every government in history — has rarely voluntarily relinquished powers it had taken for itself.

If Donald Trump feels empowered to cut off access to a certain type of court proceeding — especially in the context of his already cavalier attitude towards following court orders, and with high-level officials like Stephen Miller talking about a suspension of habeas corpus — there’s not much to indicate that he won’t push the envelope and try to expand this practice to others.

The basic conception of due process is necessarily that either we all have it, or no one does.