Pardon the old-fashioned joke. The item is a little more serious. We are used to this being the least transparent administration in modern American history, and in the immigration enforcement area recent months have seen, in no particular order, secrecy about FOIA disclosures, secrecy (abetted by the congressional leadership) about oversight, secrecy about the identity of detainees, and the unwarranted (and unacceptable in any case) conversion of federal immigration enforcement authorities into a masked paramilitary form of secret police, a thuggish practice that is proliferating and which is part of a congeries of practices–enforcement quotas, making deals with countries like El Salvador, egging on or winking at abusive conduct, and so on–that could not be more authoritarian and less conservative.
But this looks like a new one: The Intercept, a publication whose politics I don’t remotely share but one that does an excellent job of putting reporters on the ground for shoe-leather journalism, reports on government attorneys withholding their names in immigration proceedings that are open to the public, behavior that in the two separate cases noted had the full compliance of the ALJ. One hopes this is not happening in other immigration courts.
I am not a name-and-shame type and would rather not encourage conditions that drive law- and oath-abiding, sane Americans from the ranks of federal government employees in or out of law enforcement. But there is no anti-doxxing exception to the conditions of basic transparency that constitute one of the bulwarks of the rule of law. The justification for such behavior is surely even more questionable than the already inadequate justification for the ongoing formation of our masked secret police–not that the government responded to the Intercept’s request for comment. We do not and cannot have a secret-police-style arrangement for lawyers, in and out of the courts. The remedy for the mostly nonexistent concerns the government has used to justify itself is better security and more fortitude–not the casual piecemeal establishment of a USNKVD.
I tend to think, as I’ve said before, that comparisons to Hitler are inapt for this regime. They are not somehow categorically impermissible in the way that comparisons to, say, Russia, China, El Salvador, or a banana republic would be; there is no logic to such a suggestion. They’re just not the best fit. Comparisons to Hitler’s supporters, defenders, and apologists, on the other hand, are another matter. That comparison is appropriate, and appropriate in spades for lawyers. To casuistically defend conduct like this, or to selectively defend conduct of which one approves while ignoring or remaining painstakingly silent about (or indifferent to) the many abuses before one’s eyes, does indeed put a lawyer, or indeed any citizen, in the position of colossal, consequential moral failure or cowardice of those who allowed Hitler’s regime, or other authoritarian regimes, to spread and flourish.
Posted by Paul Horwitz on July 15, 2025 at 03:40 PM