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Maria Archuleta, (212) 519-7808 or 549-2666; firstname.lastname@example.org
a radical departure from years of legal precedent, Attorney General
Michael Mukasey has ended the practice of allowing immigrants to reopen
immigration cases that they lost because of their lawyers' mistakes or
incompetence. Mukasey's order, which is effective immediately, may lead
to the deportation of innumerable immigrants who have lost their cases
due to attorney error.
"This order will have a tremendous
negative impact on countless people who will be deported simply because
they had the bad luck to be represented by the wrong immigration
attorney," said American Civil Liberties Union Immigrants' Rights
Project Deputy Director Lee Gelernt. "This is a dangerous move away
from the U.S. tradition of fairness and due process. Losing your case
because your lawyer missed a deadline or made some other egregious
error can never be considered a fair process."
In early August 2008, Mukasey
instructed that any briefs responding to the proposed reversal of the
right to claim "ineffective assistance" of counsel be submitted by
mid-September. After many organizations and lawyers protested that this
provided insufficient time to respond to such major legal and policy
issues, he extended the deadline a scant three more weeks, preventing
organizations opposing the change, including the ACLU and the American
Bar Association (ABA), from providing a meaningful response.
"Days before President-elect Obama
takes office, the Bush Justice Department has taken another step to
undermine the fundamental rights of a uniquely vulnerable group," said
ACLU Immigrants' Rights Project Director Lucas Guttentag. "This cries
out for reform to preserve the core values of equality and fairness."
Mukasey's order, as well as letters
to Mukasey from the ACLU, the ABA, the American Immigration Law
Foundation and numerous partners at some of the country's most
prestigious law firms opposing the change or objecting to insufficient
time allotted for submitting briefs are available online at: www.aclu.org/immigrants/gen/37064res20081007.html
The American Civil Liberties Union was founded in 1920 and is our nation's guardian of liberty. The ACLU works in the courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States.(212) 549-2666
"DOJ can and SHOULD admit that the plaintiff is right," one political observer said of NAGE's case that takes aim at the debt limit statute. "The administration is not required to defend the legally indefensible."
As the White House and congressional negotiators fail to stop the U.S. from hurtling toward an economically "catastrophic" default, a labor union representing nearly 75,000 government workers on Friday asked a federal court to take emergency action.
Treasury Secretary Janet Yellen has warned that if Congress doesn't raise the debt ceiling—which House Speaker Kevin McCarthy (R-Calif.) and other GOP lawmakers refuse to do without spending cuts targeting working people—the government could run out of money to pay its bills as early as June 1.
That rapidly approaching deadline and fruitless negotiations have led a growing number of lawmakers and legal scholars to urge President Joe Biden to invoke the 14th Amendment to the U.S. Constitution, which states that "the validity of the public debt... shall not be questioned."
Friday's request for judicial intervention stems from a lawsuit—which cites the 14th Amendment—that attorneys for the National Association of Government Employees (NAGE) filed in the U.S. District Court for the District of Massachusetts on May 8. While Biden and Yellen are named as defendents, the aim of the case is to have the debt limit law declared unconstitutional.
"This litigation is both an effort to protect our members from illegal furloughs and to correct an unconstitutional statute that frequently creates uncertainty and anxiety for millions of Americans."
"This litigation is both an effort to protect our members from illegal furloughs and to correct an unconstitutional statute that frequently creates uncertainty and anxiety for millions of Americans," NAGE national president David Holway said earlier this month. "The debt ceiling has become a political football for certain members of Congress. If Congress will not raise the debt limit as it has nearly 80 times before without condition, it leaves no constitutional choice for the president."
"Congress' failure of will to act is not justification to violate the Constitution," added Holway, just days after his union endorsed Biden for reelection. "But it is the reason this case had to be filed to protect the American public, federal employees, and our Constitution."
The New Republic staff writer Timothy Noah wrote a couple of days after the first filing that "the NAGE lawsuit invites us to think of Congress as a body that's not merely able but obliged to govern. You don't like how the president spends the taxpayer's money, Mr. Speaker? Then pass a budget, for Chrissakes, and stop playing childish games."
As The American Prospect executive editor David Dayen noted later that week—citing University of Missouri law professor Tommy Bennett—because the president "has the option of minting the trillion-dollar coin to cover obligations, or issuing premium bonds known as consol bonds," he has "a way out of the lose-lose choice of violating one law or the other," which could imperil the case.
Still, Dayen has advocated for the lawsuit to move forward quickly. Early Friday, he highlighted that if the case could be decided soon, "there would be no legal chaos," but lawyers for NAGE "inexplicably" have not sought a temporary restraining order or preliminary injunction that would force Judge Richard Stearns—an appointee of former President Bill Clinton—to act urgently.
Later Friday, the union's legal team did just that—asking the court for an order of preliminary injunction.
Dayen broke down the filing in a series of tweets, then concluded by pointing out that representatives for Biden and Yellen aren't currently required to even respond to the case until days after June 1, the so-called "X-date."
\u201cDOJ can and SHOULD admit that the plaintiff is right. The Administration is not required to defend the legally indefensible.\u201d— Jeff Hauser (@Jeff Hauser) 1684542306
As Biden met with other world leaders at the Group of Seven summit in Hiroshima, Japan on Friday, debt ceiling talks in Washington, D.C. stalled for a bit, then resumed. But negotiators' evening meeting ended without a deal, according toCNN, and "sources at the White House and on Capitol Hill said there were no debt ceiling meetings scheduled for Saturday."
Biden, who is set to head back to D.C. on Sunday, struck an optimistic tone, reportedly saying during a Saturday press conference in Hiroshima that "I still believe we'll be able to avoid a default and we'll get something decent done."
The president said earlier this month that he had been "considering" the 14th Amendment, but "the problem is, it would have to be litigated," so "I don't think that solves our problem now."
Despite growing demands that Biden swiftly end the GOP's economic "hostage-taking" by invoking the amendment—including from at least 11 senators and 66 House progressives this week—Politico's Adam Cancryn reported Friday that publicly, "the White House remains resistant... And privately, its message has been even blunter."
In line with reporting earlier this month by Washington Post White House economics reporter Jeff Stein, Cancryn wrote:
Senior Biden officials have told progressive activists and lawmakers in recent days that they do not see the 14th Amendment... as a viable means of circumventing debt ceiling negotiations. They have argued that doing so would be risky and destabilizing, according to three people familiar with the discussions.
The White House has studied the issue for months, with some aides concluding that Biden would likely have the authority to declare the debt limit unconstitutional as a last-ditch way to sidestep default. But Biden advisers have told progressives that they see it as a poor option overall, fearing such a move would trigger a pitched legal battle, undermine global faith in U.S. creditworthiness, and damage the economy. Officials have warned that even the appearance of more seriously considering the 14th Amendment could blow up talks that are already quite delicate.
"They have not ruled it out," one White House adviser told Politico. "But it is not currently part of the plan."
As McCarthy left the U.S. Capitol Saturday evening, he said that "I don't think we're going to be able to move forward until the president can get back in the country," according toABC News.
The White House press secretary, Karine Jean-Pierre, said in a statement Saturday evening that after agreeing with Biden that any budget deal would need to be bipartisan, "last night in D.C., the speaker's team put on the table an offer that was a big step back and contained a set of extreme partisan demands that could never pass both Houses of Congress."
"The president has over and over again put deficit reduction proposals on the table, from limits on spending to cuts to Big Pharma profits to closing tax loopholes for oil and gas," she added. "Let's be clear: The president's team is ready to meet any time. And, let's be serious about what can pass in a bipartisan manner, get to the president's desk, and reduce the deficit. It is only a Republican leadership beholden to its MAGA wing—not the president or Democratic leadership—who are threatening to put our nation into default for the first time in our history unless extreme partisan demands are met."
\u201cAll caveats about deals usually being struck before everything falls apart, but this doesn't look like a negotiation with an endgame.\u201d— David Dayen (@David Dayen) 1684624571
Ahead of Jean-Pierre's statement Saturday, Stein and his Post colleagues reported—citing sources with knowledge of the talks—that "Republican negotiators rejected a White House offer to limit spending next year on both the military and a wide range of critical domestic programs as part" and "are instead pushing for higher defense spending and more significant domestic spending reductions."
This article has been updated with additional comment from the White House and reporting by ABC News and The Washington Post.
The ruling forces the airlines "to continue competing, eliminating anti-competitive revenue-sharing incentives and setting an important precedent against future consolidation in the industry," said one expert.
A Massachusetts-based federal judge on Friday sided with the Biden administration plus six states and the District of Columbia, which launched an antitrust challenge to American Airlines and JetBlue Airways' "de facto merger" for Boston and New York City.
The U.S. Department of Justice (DOJ) along with the attorneys general of Arizona, California, Florida, Massachusetts, Pennsylvania, Virginia, and D.C. filed a civil lawsuit over the airlines' Northeast Alliance (NEA) in September 2021.
"This case turns on what 'competition' means," U.S. District Court Judge Leo Sorokin, an appointee of former President Barack Obama, wrote Friday. "To the defendants, competition is enhanced if they join forces to unseat a powerful rival. The Sherman Act, however, has a different focus."
"Federal antitrust law is not concerned with making individual competitors larger or more powerful. It aims to preserve the free functioning of markets and foster participation by a diverse array of competitors," the judge added. "Those principles are generally undermined, rather than promoted, by agreements among horizontal competitors to dispense with competition and cooperate instead. That is precisely what happened here."
\u201cA federal judge ruled today that JetBlue and America's alliance amounted to an illegal merger. Another big win for DOJ Antitrust.\nhttps://t.co/wuzrarwi5b\u201d— David Dayen (@David Dayen) 1684528367
Sorokin stressed that "American and JetBlue are two of the four largest carriers operating in New York, and two of the largest three in Boston. Delta Air Lines is the only other carrier with a large presence in Boston. Besides Delta and United Airlines, no other carrier matches or approaches in size the defendants' respective positions in New York."
After noting that the pair established the "first-of-its-kind alliance" in 2020, he explained:
This was a sea change in the relationship between two airlines that were direct and aggressive competitors with decidedly different business models and cost structures. There is no doubt that savvy executives representing both defendants earnestly believe the NEA promotes the interests of their respective shareholders and will strengthen American and JetBlue in their rivalry against Delta (and, to a lesser extent, United) in New York and Boston. It is similarly beyond dispute that the NEA involves substantial coordination by two powerful competitors in an industry that, on a domestic level, is closely regulated, highly concentrated, and often volatile.
Reutersreported that after Sorokin ordered the end of the alliance within 30 days, "JetBlue shares fell 1.8% for the day, while American closed down 1.5%," and both airlines said "they were evaluating their next steps."
Meanwhile, the DOJ, its state partners, and other critics of consolidation celebrated the initial court victory.
"Today's decision is a win for Americans who rely on competition between airlines to travel affordably," said Attorney General Merrick Garland in a statement. "The Justice Department will continue to protect competition and enforce our antitrust laws in the heavily consolidated airline industry and across every industry."
\u201cA \u201cde facto merger\u201d between @JetBlue\nand @AmericanAir could have added $700 million in annual costs for consumers. Thanks to @JusticeATR and @MassAGO Campbell for fighting to keep the airline industry competitive\u2014this is a win for folks in MA and beyond. https://t.co/ZZxHFPVH33\u201d— Elizabeth Warren (@Elizabeth Warren) 1684595364
American Economic Liberties Project senior fellow for aviation and travel William McGee agreed that the DOJ Antitrust Division's successful challenge of the NEA "is a win for passengers and the public."
"Blocking this de facto merger forces JetBlue and American to continue competing, eliminating anti-competitive revenue-sharing incentives and setting an important precedent against future consolidation in the industry," McGee said. "We hope to see a similar ruling in favor of the Justice Department's suit against the JetBlue-Spirit merger, another illegal deal that would accelerate concentration and drive up fares nationwide."
\u201cThe context for this is a 45-year trend toward concentration and anticompetitive re-orientation of routes since the industry was deregulated in 1978. @WilliamJMcGee and I have a forthcoming piece describing the myriad failures of the deregulation experiment. This is a good day.\u201d— Lee Hepner (@Lee Hepner) 1684528029
As Common Dreamsreported in March, the DOJ joined with the attorneys general of Massachusetts, New York, and D.C. to file a civil suit against the JetBlue-Spirit merger, arguing that "by eliminating that competition and further consolidating the United States airlines industry, the proposed transaction will increase fares and reduce choice on routes across the country, raising costs for the flying public and harming cost-conscious fliers most acutely."
McGee said at the time that by "blocking this blatantly anti-competitive deal, the Department of Justice is standing up for passengers, workers, and communities across the country."
"The FBI's systematic misuse of these resources proves that it (and the rest of the federal government) simply can't be trusted to wield this sort of power," said one campaigner. "Let 702 die."
Friday's "alarming" revelations about U.S. law enforcement's abuse of a powerful surveillance tool "confirmed the worst fears of advocates" and likely further complicated a brewing battle in Congress over reauthorizing a constitutionally dubious spying law.
Section 702 of the Foreign Intelligence Surveillance Act (FISA)—which is set to expire at the end of this year unless reauthorized by federal lawmakers—empowers the U.S. government to engage in warrantless surveillance of electronic communications. Although the law only authorizes targeting foreigners located outside the United States to acquire foreign intelligence information, a massive amount of Americans' data is also collected.
On Friday, the Office of the Director of National Intelligence (ODNI), in consultation with the U.S. Department of Justice (DOJ), released a pair of redacted Foreign Intelligence Surveillance Court (FISC) opinions—one which revealed that in 2020 and early 2021, the Federal Bureau of Investigation (FBI) misused the Section 702 database over 278,000 times.
"These unlawful searches undermine our core constitutional rights and threaten the bedrock of our democracy. It's clear the FBI can't be left to police itself."
The "persistent and widespread" violations by the FBI—which is part of the DOJ—include searches for information related to crime victims, protesters arrested after the 2020 police killing of George Floyd, donors to a congressional candidate, and people suspected of breaching the U.S. Capitol on January 6, 2021.
The New York Times reported that "a senior FBI official said that in those cases, the analysts misunderstood the standard and were required to undergo additional training," and a representative for the DOJ disclosed that the unidentified political candidate lost to an incumbent lawmaker.
The ODNI's statement about the court documents insists that "all of these compliance incidents occurred prior to FBI deploying a series of remedial measures beginning in the summer of 2021 and through 2022. As a result, these compliance incidents do not reflect FBI's querying practices subsequent to the full deployment of the remedial measures."
However, exposure of the FBI's conduct prompted fresh demands from civil liberties advocates in Congress and beyond for seriously reforming or even ending Section 702, with several critics casting doubt on claims that the bureau—and other agencies with access to the collected data—will behave absent outside intervention.
\u201cA recent internal FBI audit suggests that the new changes have reduced the rate of non-compliance from 18% to 4%. At first blush, that sounds pretty good. But there are serious questions about the methodology for the audit. 15/22\u201d— Elizabeth Goitein (@Elizabeth Goitein) 1684523216
"These abuses have been going on for years and despite recent changes in FBI practices, these systematic violations of Americans' privacy require congressional action," U.S. Sen. Ron Wyden (D-Ore.) declared Friday. "If Section 702 is to be reauthorized, there must be statutory reforms to ensure that the checks and balances are in place to put an end to these abuses."
"I am disappointed at the extent of the redactions in the opinions released today," he added, pledging to pressure ODNI to inform the public about the interpretation of the law behind closed doors. "There is important, secret information about how the government has interpreted Section 702 that Congress and the American people need to see before the law is renewed."
House Judiciary Committee Ranking Member Jerry Nadler (D-N.Y.) also weighed in, though he noted his hesitation to do so given that Rep. Jim Jordan (R-Ohio) has created the Select Subcommittee on the Weaponization of the Federal Government—which has been called the "Insurrection Protection Committee" and a "fascist power grab to evade accountability" by progressive lawmakers:
In the middle of Chairman Jordan's overzealous attack on federal law enforcement and the absurd claims advanced by the MAGA crowd on the weaponization subcommittee, I am hesitant to comment at all—but the abuse of FISA authority detailed in this opinion demands a response from all members of Congress. Section 702 exists only to protect the country from external threats to our national security. The government may only use it to target non-U.S. persons located outside of the United States. If the FBI insists on using it for routine domestic criminal investigations, without a warrant or probable cause, then perhaps they should not have access to this information at all. The problem is not that the FBI unlawfully targeted thousands of Americans of any particular political view. They appear to have conducted backdoor searches on Black Lives Matter protestors, January 6th rioters, and everyone in between. The problem is that they unlawfully targeted thousands of Americans. Period.
The FBI says that they have instituted new procedures to make this kind of abuse impossible. They have made that promise before. Without significant changes to the law to prevent this abuse, I will oppose the reauthorization of this authority.
Civil society groups that have for years sounded the alarm about Section 702 responded similarly to the latest revelations.
"Today's disclosures underscore the need for Congress to rein in the FBI's egregious abuses of this law, including warrantless searches using the names of people who donated to a congressional candidate," Patrick Toomey, deputy director of the ACLU's National Security Project, toldThe Associated Press Friday. "These unlawful searches undermine our core constitutional rights and threaten the bedrock of our democracy. It's clear the FBI can't be left to police itself."
The Washington Postnoted that "this is not the only time the FBI has been in trouble for the database. Another recent audit found multiple problems, including that the FBI used the database to search for the name of a member of Congress."
\u201cViolations revealed in previous FISC opinions include searches targeting a U.S. congressman; a local political party; multiple U.S. gov\u2019t officials, journalists, and political commentators; and two \u201cMiddle Eastern\u201d men who were seen loading cleaning supplies into a vehicle. 6/22\u201d— Elizabeth Goitein (@Elizabeth Goitein) 1684523215
"For the FBI to misuse Section 702 to spy on people protesting the killing of George Floyd, political donors, and victims of crimes is an unspeakable abuse of trust," said Demand Progress senior policy counsel Sean Vitka. "Congress must enact comprehensive privacy protections for people in the United States, against all forms of warrantless surveillance, or Section 702 must fall. If the administration wants to see this law survive in any form, it should publicly embrace this reality."
The Biden administration in recent months has urged Congress to reauthorize Section 702, including in a February letter to top Democratic and Republican lawmakers from Attorney General Merrick Garland and Avril Haines, director of national intelligence.
Vitka asserted that the "shocking" abuse is "unmatched since the days of J. Edgar Hoover," a former longtime FBI director also referenced by Jake Laperruque, deputy director of the Center for Democracy & Technology's Security & Surveillance Project.
"Even with the long history of FBI misuse of FISA 702, these latest revelations should set off alarm bells across Congress," said Laperruque. "The systemic misuse of this warrantless surveillance tool has made FISA 702 as toxic as COINTELPRO and the FBI abuses of the Hoover years. Absent a full overhaul of Section 702 and related surveillance powers, Congress should not allow the law to be extended past this year."
"For decades, we've seen surveillance abuse target political dissidents and marginalized communities, and worried a defensive search exception for FISA 702 could be misused the same way," he added, referring to queries seeking data on someone who may be a victim or target of a foreign influence operation. "This shocking example of 'defensive searches' being an excuse to pull up the communications of a batch of 19,000 political donors without a warrant should end the discussion of whether any type of 'defensive search' exception is safe or acceptable.”
\u201cCongress must end Section 702's unconstitutional surveillance. https://t.co/gBoRHAJOjy\u201d— EFF (@EFF) 1684527076
Elizabeth Goitein, co-director of Brennan Center for Justice's Liberty and National Security Program, said in a series of tweets Friday that "it's time to end this charade once and for all. The Fourth Amendment requires the government to show probable cause to a court if it wants to access Americans’ communications."
"Backdoor searches provide an end-run around this requirement under the best of circumstances and they are indefensible when the [government] is violating its own minimal standards in ways that directly impact Americans' rights to engage in political protest, donate to political campaigns, or just live their lives free from [government] scrutiny based on race or ethnicity," she added. "Congress should not authorize Section 702 without sweeping reforms, starting with a warrant requirement to conduct U.S. person queries of any data the government obtained without a warrant based on the claim that it was not targeting Americans."
In a Friday opinion piece for Fast Company, Albert Fox Cahn, founder and executive director of the Surveillance Technology Oversight Project, argued that the data collected under Section 702 "is nothing short of a loaded gun aimed at the heart of a democracy, a lawless digital dragnet systematically abused by those who swore to uphold the law."
The campaigner continued:
As civil rights groups warned would happen, FBI agents just couldn't help themselves. Rather than follow the limits that were supposed to protect Americans from this international dragnet, agents used this terrifying tool to target protesters and domestic suspects. And the abuses should be chilling to all of us, no matter where we sit on the political spectrum...
It would have been disturbing if these sorts of egregious examples happened just a few times, but to see the FBI's systematic misuse of these resources proves that it (and the rest of the federal government) simply can't be trusted to wield this sort of power.
"If the FBI is willing to break the law this brazenly, Congress and the administration must acknowledge that there's no set of guardrails, no Band-Aid, that can fix 702 and keep the public safe," he concluded. "The only way to safeguard our data and our rights is to do what we should have done a long time ago: Let 702 die."