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Following Bush-era argument, Obama attorneys push to weaken search protections

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Even though a Bush-era request to conduct blanket searches of computer files was rebuked by judges, the Obama administration is now pushing to have the decision reversed, according to court documents filed the week of Thanksgiving.

U.S. Solicitor General Elena Kagan, an Obama appointee, and twenty other government attorneys submitted a brief to the Ninth US Circuit Court of Appeals, making a very extraordinary request.

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Federal prosecutors went too far when they seized the drug test results of 104 pro baseball players, according to a 9-2 “en banc” panel decision in August by the 9th US Circuit Court of Appeals. The ruling included guidelines for computer search conduct designed to protect Fourth Amendment privacy rights, in the style of Miranda rights.

Chief Judge Alex Kozinski wrote at the time that the government “must maintain the privacy of materials that are intermingled with seizable materials, and … avoid turning a limited search for particular information into a general search of office file systems and computer databases.”

In 2006, the 9th Circuit initially sided with the Bush administration against the Major League Baseball Players Association in a 2-1 decision.

Back in 2003, the warrant in the hands of the prosecutors allowed them to search urinalysis records of ten pro baseball players at a Long Beach drug-testing facility. They claimed the information on other players found in a Microsoft Excel spreadsheet was in plain sight, and therefore lawful. But the Court of Appeals argued agents could have selected, copied and pasted only the rows listing the specific players named in the search warrant.

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Instead they scrolled to the right side of the spreadsheet to peek at the test results of each player. The names of four players not linked to the warranted BALCO investigation were later leaked to The New York Times. In the public eye, power-hitters David Ortiz, Manny Ramirez, Alex Rodriguez and Sammy Sosa may never scrub clean the taint. Sosa will be eligible for the Hall of Fame in 2013, along with controversial star Barry Bonds.

The player’s union accused The Times of breaking the law. “The leaking of information under a court seal is a crime,” he said in a statement. “The active pursuit of information that may not lawfully be disclosed because it is under court seal is a crime.”

Michael Schmidt, the reporter, insists he did nothing wrong, “It is the choice of the source to talk. I believe it is legal and ethical for me to ask questions of people who may be covered by court orders.”

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During the slow news week of Thanksgiving the Obama administration took action, seeking to reverse the 3-month old decision. Wired Magazine and libertarians had applauded the dramatic reductions to the government’s search-and-seizure powers, but the government now claims “computer searches have ground to a complete halt” in some districts.

Inside a 27-page brief submitted to the San Francisco-based court Nov. 23 (and made available on the Wired Magazine website) Solicitor General Kagan and twenty other undersigned government attorneys insist the 9th Circuit Appeals judges must “withdraw the en banc panel’s decision.” In other words, throw out the 11-judge ruling and review the case again with all 27 of its judges, an unprecedented request.

“The United States is mindful that this Court has never granted full court en banc,” the brief states. “Indeed, the federal government has never asked the Court to do so. But the broad issues unnecessarily addressed in the en banc panel’s opinion are of surpassing importance and compel that extraordinary action.”

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The court said rather than copy an entire drive, the government should cull the specific data described in its search warrant. Otherwise, use an independent third party to comb through files under court supervision, providing nothing else to government agents. So, which Fourth Amendment protections are unnecessary?

The government is pointing to a nauseating rape case to argue investigators are now the ones in handcuffs. “Agents did not obtain a warrant to search the suspects’ computers,” the government wrote, “because of concerns that any evidence discovered about other potential victims could not be disclosed by the filter team.”

After the Ninth Circuit Court of Appeals, the last avenue available to the solicitor general would be a review from the Supreme Court.

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… then let us make a small request. Like you, we here at Raw Story believe in the power of progressive journalism — and we’re investing in investigative reporting as other publications give it the ax. Raw Story readers power David Cay Johnston’s DCReport, which we've expanded to keep watch in Washington. We’ve exposed billionaire tax evasion and uncovered White House efforts to poison our water. We’ve revealed financial scams that prey on veterans, and efforts to harm workers exploited by abusive bosses. We’ve launched a weekly podcast, “We’ve Got Issues,” focused on issues, not tweets. Unlike other news sites, we’ve decided to make our original content free. But we need your support to do what we do.

Raw Story is independent. You won’t find mainstream media bias here. We’re not part of a conglomerate, or a project of venture capital bros. From unflinching coverage of racism, to revealing efforts to erode our rights, Raw Story will continue to expose hypocrisy and harm. Unhinged from corporate overlords, we fight to ensure no one is forgotten.

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Trump has been ‘insulated’ by his wealth to never have to learn from his mistakes: biographer

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President Donald Trump's inherited wealth has meant he's never had to learn from his mistakes, Trump biographer Tim O'Brien told MSNBC's Brian Williams on Thursday.

"Bloomberg Opinion writer and our next guest Tim O’Brien writes today, 'Yes, of course, you need a certain kind of appalling narcissism to be comfy promoting yourself as heaven-sent in a televised press briefing and as a deity on Twitter. It’s doubly unhinged when you’re doing this as president,'" Williams said. "He goes on 'The Trump of the past few weeks is the same disordered figure of the past several decades with, I suspect, a big dollop of something new blended in: unbridled and unmanageable panic.'"

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The Russian Federation and the People's Republic of China are both rooting for President Donald Trump to win re-election in 2020, a New York Times columnist argued on MSNBC on Thursday.

Thomas Friedman was interviewed by Lawrence O'Donnell on "The Last Word."

"What do we know about how the leaders of other countries see Donald Trump at this stage in their dealings with him?" O'Donnell asked. "Especially this weekend, when it comes at the end of a week in which they’ve heard him call himself the King of Israel, they have heard him say he is The Chosen One. They have heard all the crazy things that everyone here has heard the president say."

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Trump is ‘not a stable genius’: GOP strategist says the president ‘doesn’t remember who and where he is’

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President Donald Trump's mental fitness is lacking, a top Republican strategist explained on "The Last Word" with Lawrence O'Donnell.

Rick Wilson, the author of the 2018 bestselling book Everything Trump Touches Dies: A Republican Strategist Gets Real About the Worst President Ever, blasted the commander-in-chief.

"Rick Wilson, your assessment of where the president stands as he heads off to the G7 summit?" O'Donnell asked.

"I think Donald Trump has had a week in which he is proving that this isn’t 87-dimensional chess game, this isn't some masterful strategy of communications or persuasion," Wilson replied. "This is an old man who is sick and who has problems and who has mental disconnects and who has aphasias and who has moments where he doesn’t remember who and where he is."

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