By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project at 10:31am

New documents from the FBI and U.S. Attorneys’ offices paint a troubling picture of the government’s email surveillance practices. Not only does the FBI claim it can read emails and other electronic communications without a warrant—even after a federal appeals court ruled that doing so violates the Fourth Amendment—but the documents strongly suggest that different U.S. Attorneys’ offices around the country are applying conflicting standards to access communications content (you can see the documents here).

Last month, in response to a Freedom of Information Act request, the ACLU received IRS documents indicating that the agency’s criminal investigative arm doesn’t always get a warrant to read Americans’ emails. Today we are releasing these additional documents from other federal law enforcement agencies, reinforcing the urgent need for Congress to protect our privacy by updating the laws that cover electronic communications.The documents we received from the FBI don’t flat out tell us whether FBI agents always get warrants, but they strongly suggest that they don’t.

In 2010, the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages to law enforcement. But that decision only applies in the four states covered by the Sixth Circuit, so we filed our FOIA request to find out whether the FBI and other agencies are taking advantage of a loophole in the outdated Electronic Communications Privacy Act (ECPA) that allows access to some electronic communications without a warrant. Distressingly, the FBI appears to think the Fourth Amendment’s warrant requirement doesn’t always apply.

More: FBI Documents Suggest Feds Read Emails Without a Warrant

WASHINGTON—A federal appeals court said Friday that it will no longer accept the “fiction” from the Obama administration’s lawyers that the CIA has no interest or documents that describe drone strikes.

“It is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say the Agency at least has an intelligence interest in such strikes,” said Chief Judge Merrick Garland. “The defendant is, after all, the Central Intelligence Agency.”

The decision gave a partial victory to the American Civil Liberties Union in a Freedom of Information Act lawsuit that seeks documents on the government’s still-secret policy on drone strikes. The three judges did not say any particular documents must be released, but they rejected the administration’s position that it could simply refuse to “confirm or deny” that it had any such documents.

A federal judge had rejected the ACLU’s suit entirely, but the three-judge appeals court revived the suit. The agency’s non-response does not pass the “straight face” test, Garland concluded.

More: Federal Court Rejects CIA’s Denial of Drone Strikes as ‘Fiction’

Just to preempt certain criticisms, yes this policy was started by GW Bush. However that has little relevance so many years later. The Obama administration continued and now owns the policy. Fortunately the judges saw the light of civil liberty being protected from search without cause. Now the administration should accept the decision in good grace and change policy accordingly. I for one am not holding my breath. I expect Holder will appeal at his bosses insistence.

A federal appeals court for the first time ruled Friday that U.S. border agents do not have carte blanche authority to search the cellphones, tablets and laptops of travelers entering the country — a “watershed” decision in the court’s own terms and one at odds with the policies of the President Barack Obama administration.

The ruling by a divided 11-judge panel of the 9th U.S. Circuit Court of Appeals is the most significant privacy decision in the digital age following the Supreme Court’s ruling last year requiring authorities to get warrants to place GPS tracking devices on suspects’ vehicles. Under Friday’s ruling, for the first time digital devices are granted limited relief from the so-called “border search exception” of U.S. law that allows international travelers — including U.S. citizens and their luggage and vehicles — to be searched for any reason as they enter the country.

“A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind,” Judge M. Margaret McKeown wrote (.pdf) for the 8-3 court. “When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.”

More: Appeals Court Curbs Border Agents’ Carte Blanche Power to Search Your Gadgets

For the second time in two years, Senate Republicans are poised to block the nomination of a former New York state solicitor general to a federal appeals court.

The Senate is set to vote on a cloture petition on Caitlin Halligan’s nomination to the U.S. Court of Appeals for the District of Columbia Circuit on Wednesday, unless a winter storm that hit the nation’s capital overnight causes delays.

Most Republicans are expected to unite against her nomination, preventing Democrats from reaching the 60 votes needed to pass the cloture motion. Without that step, Democrats can’t hold a final confirmation vote.

It is the latest case of Republicans stymieing a judicial nomination by President Barack Obama. GOP senators blocked Goodwin Liu, a nominee to the Ninth Circuit U.S. Court of Appeals, in May 2011, and many other nominations to federal courts have faced long delays. Republicans observe that many of President George W. Bush’s nominees received the same treatment from Democrats.

Sen. John Cornyn (R., Texas), the No. 2 Senate Republican and a senior member of the Senate Judiciary Committee, said he would oppose Ms. Halligan’s nomination because of the “potential for her judicial activism” if she were confirmed to the D.C. Circuit.

More: Senate Poised to Block Obama Court Nominee - Washington Wire - WSJ

Some people who advocate coercive school prayer are relentless. They’re always coming up with a new scheme to impose their preferred form of worship onto impressionable public school students.

Sometimes they even try to use children to spread religious messages in schools. Yesterday, a federal appeals court put the brakes on this latest effort to compel prayer in schools.

The case involved a student, identified in court papers as A.M., who wanted to close her middle school graduation speech with a prayer taken from the Old Testament Book of Numbers. The passage, Numbers 6:24-26, is often called the Priestly Benediction.

Officials at the Taconic Hills Central School District in Crayville, N.Y., declined to allow the girl to recite the passage, so her family lined up help from a small Religious Right-oriented law firm in Florida and sued. A federal district court rejected the suit, and now the 2nd U.S. Circuit Court of Appeals has agreed.

When the A.M. v. Taconic Hills Central School District case reached the appeals court, attorneys with Americans United filed a friend-of-the-court brief, siding with school officials. At that time, Americans United Associate Legal Director Alex J. Luchenitser pointed out what was really going on here.

“The Religious Right is trying to use students to circumvent court rulings that have prohibited clergy and school employees from leading prayers at public school events,” Luchenitser, who drafted AU’s brief, said in a media statement. “We are asking the court to put an end to such efforts. Evangelization of captive student audiences does not belong in the public schools.”

AU’s brief pointed out that the federal courts have ruled repeatedly that the Constitution prohibits public schools from sponsoring or promoting prayer and other acts of worship. Because public schools serve children from diverse backgrounds, AU asserted, the institutions must remain neutral on matters of theology.

More: Public School Proselytizing Prohibited: Federal Appeals Court Rejects New Prayer Scheme

Appeals Court Considers Challenge to Obama Recess Appointments

Obstructionist GOP trying to block appointments indefinitely. It’s definitely past time for filibuster and other senate reforms.

Republicans and business groups told a federal appeals court Wednesday that President Barack Obama violated the Constitution earlier this year when he bypassed the Senate to fill vacancies in his administration.

Attorneys for the groups told a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that Obama abused his power in January when he made recess appointments to the National Labor Relations Board.

“I would suggest there is a huge cloud hanging over the National Labor Relations Board right now,” said Noel Francisco, attorney for the U.S. Chamber of Commerce and other groups challenging the action.

The case is an important test of presidential power and could determine whether the Senate can indefinitely block presidential appointments by refusing to adjourn. Senate Minority Leader Mitch McConnell of Kentucky came to watch the hearing in a packed courtroom. McConnell and 46 other Senate Republicans filed a friend-of-the-court brief arguing the appointments are invalid.

At issue: When is the Senate in session, when is it in recess and who gets to decide? Certain high-profile appointments must be confirmed by the Senate, but if lawmakers are away for the holidays or other breaks, the president can act on his own with a recess appointment.

motherjones.com

On Friday, the Supreme Court will convene privately to make a highly anticipated decision: Will it weigh in on gay marriage? There are currently seven cases in front of the court, covering issues from whether married gay veterans can be buried together in a military cemetery to whether same-sex couples can once again marry in California. The court can decide to hear all, some, or none of the cases. And merely deciding to take a case or not will have broad implications for the future of gay marriage in the United States.

Which cases are involved?

Hollingsworth v. Perry, a challenge to Califorinia’s Proposition 8, is the only case facing the high court that deals specifically with the right of same-sex couples to marry. After the California Supreme Court legalized gay marriage in 2008, anti-gay-marriage activists passed an amendment to the California constitution defining marriage as between a man and a woman. A federal appeals court then declared the proposition unconstitutional under the 14th Amendment.

More at Scotusblog

More at San Diego Gay News

Appeals Court Overturns Terrorism Conviction of Salim Ahmed Hamdan, Bin Laden’s Driver

A federal appeals court on Friday overturned the terrorism conviction of Salim Ahmed Hamdan, a former driver and bodyguard for Osama bin Laden whose case has been one of the most tangled to emerge from the war crimes trials of detainees held by the military at Guantánamo Bay, Cuba.

The court found that Mr. Hamdan’s conviction by a military commission for providing material support for terrorism could not stand because, under the international law of war in effect at the time of his actions, there was no such defined war crime.

The Military Commission Act, a law passed in 2006, does not authorize such retroactive prosecutions, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled.

The case of Mr. Hamdan, once considered a dangerous terrorist by the Bush administration, forced Congress to pass that 2006 statute in the first place.

Lawyers for Mr. Hamdan, a Yemeni who was captured in Afghanistan in 2001, had  challenged his detention and won a landmark Supreme Court case in 2006 that found the military commission system for prosecuting war crimes unconstitutional and in violation of American military law and the Geneva Conventions. That forced Congress to rewrite the rules, leading to Mr. Hamdan’s trial and conviction in 2008. Because he had already served so long in prison, he was released later that year to Yemen, his home country.

More

Facebook’s $9.5 Million ‘Beacon’ Settlement Approved

A divided federal appeals court is approving a $9.5 million settlement to a class-action lawsuit challenging Facebook’s program that monitored and published what users of the social networking site were buying or renting from Blockbuster, Overstock and other locations.

The case concerned allegations Facebook’s now-defunct “Beacon” program breached federal wiretap and video-rental privacy laws. Terms of the settlement, in which Facebook denied any wrongdoing, require the site to finance what the deal calls a “Digital Trust Fund” that would issue more than $6 million in so-called cy pres grants to organizations to study online privacy.

The settlement, in which a lower court judge signed off on in 2010, was challenged by some of the 3.6 million class members, who argued that the deal was underfunded, and that Facebook should not get a seat on the trust fund’s board (.pdf) to help decide where the money would go.

A dissenting judge on the three-judge panel agreed, but could not shore up a majority Thursday.

seattlemedium.com

A case study in how trials were rigged against civil rights activists in the South.

In an extraordinary discovery, the 40-year-old case files of the prosecuting attorney in the two 1972 Wilmington Ten criminal trials not only document how he sought to impanel, according to his own written jury selection notes, mostly White “KKK” juries to guarantee convictions, but also to keep Black men from serving on both juries.

The prosecutor chose, in his own words, “Uncle Tom” types to serve on the jury, it was disclosed. The files of Assistant New Hanover County District Attorney James “Jay” Stroud Jr. also document how he plotted to cause a mistrial in the first June 1972 Wilmington Ten trial because there were 10 Blacks and two Whites on the jury, his star false witness against the Ten was not cooperating, and it looked very unlikely that he could win the case, given the lack of evidence.

History shows that prosecutor Stroud told the presiding judge that he had become “ill,” as that first trial began, and a mistrial was indeed declared. It was during the second trial, 40 years ago this week, that Stroud got a jury more to his liking - this time 10 Whites and two Black domestic workers - and a different judge who was arguably biased against the defense.

The result? In October 1972, the 10 young civil rights activists, led by the Rev. Benjamin Chavis, were falsely convicted of conspiracy charges in connection with racial violence in the small North Carolina port city a year earlier. The nine Black males and one White female were collectively sentenced to 282 years in prison, some of which they all served before the three state’s witnesses recanted their false testimonies in 1977, admitting to being paid by prosecutors.

A federal appeals court, citing prosecutorial misconduct among other findings of fact, overturned all 10 convictions in December 1980. However, in the subsequent 32 years, the state of North Carolina has refused to follow suit, not allowing the Wilmington Ten - four of whom have since deceased - to clear their names.

The explosive “Stroud files,” as they’re being referred to, were discovered several months ago by a Duke University professor who was researching the Wilmington Ten case for a book he was writing.