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So they could read his e-mails for an extended period

Obama DOJ to federal judge: Let’s keep this James Rosen warrant between us, OK?

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By —— Bio and Archives May 29, 2013

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The entire pretext by which the Obama Justice Department justified spying on James Rosen was flimsy enough. They trumped up the notion that they might charge him as a criminal co-conspirator to justify the warrant that allowed them to read his e-mails and access his phone records. This was always absurd, based on ridiculous notions about how Rosen approached his reporting work.

But it was worse than that. Not only did they want the warrant, they wanted it kept quiet because they figured they might want to just go ahead and monitor Rosen’s e-mails for an extended period of time. The New Yorker, of all media outlets, reports:

E-mails, Machen wrote, “are commonly used by subjects or targets of the criminal investigation at issue, and the e-mail evidence derived from those compelled disclosures frequently forms the core of the Government’s evidence supporting criminal charges.”

He argued that disclosure of the search warrant would preclude the government from monitoring the account, should such a step become necessary in the investigation. Machen added that “some investigations are continued for many years because, while the evidence is not yet sufficient to bring charges, it is sufficient to have identified criminal subjects and/or criminal activity serious enough to justify continuation of the investigation.”

Machen insisted the investigation would be compromised if Rosen was informed of the warrant, and also asked the court to order Google not to notify Rosen that the company had handed over Rosen’s e-mails to the government. Rosen, according to recent reports, did not learn that the government seized his e-mail records until it was reported in the Washington Post last week.

The new details indicate that the government wanted the option to search Rosen’s e-mails repeatedly if the F.B.I. found further evidence implicating the reporter in what prosecutors argued was a conspiracy to commit espionage.

Clearly this was a fishing expedition through which the Obama Administration sought the widest possible access to Rosen’s private communication, not so much because they knew what they were looking for, but because they wanted to see what they might find. The Wall Street Journal explains what poor understanding of the craft of journalism this was all based on:

The official also cites as evidence of Mr. Rosen’s criminality that he “used false names and ‘dead drop’ email accounts” with Mr. Kim. Had he merely sat passively and received the leak, that would have been fine. But because he coaxed and wheedled and flattered his source, he was “a reporter soliciting, and aiding and abetting criminal activity.”

The dangerous ignorance here about journalism and the First Amendment is astounding. The implication is that if reporters sit at their desks and wait for the mail to deliver secrets, that’s fine. But that almost never happens. In the real world, reporters coax and wheedle and flatter. They even use “false names” the way Carl Bernstein and Bob Woodward worked “Deep Throat” to expose the Watergate scandal.

In any event, the Justice Department affidavit that requested the email search warrant offers no evidence that Mr. Rosen solicited lawbreaking. It does offer evidence that he solicited Mr. Kim as a source and asked him to provide documents. But it is not Mr. Rosen’s job as a reporter to determine the information a source might hand over, and what may or may not be classified.

The larger danger is that this anonymous official is suggesting that government can define what are legal reporting practices. How much active reporting qualifies as illegal solicitation? Is it one phone call and lunch, or five calls, three emails and a fancy dinner?

The day that prosecutors and FBI agents get to define what is illegal reporting is the day the First Amendment dies. Putting so much discretion in the hands of government officials means that the reporters who are most likely to be accused of illegally soliciting leaks will be those who are most critical of Administration policies. There’s a word for this that liberals used to like: Nixonian.

Absolutely. If the Obama DOJ really thinks these kinds of practices are unusual - let alone criminal - they know so little about how journalism works it’s nothing short of astonishing. But even more dangerous, they seem to think it’s up to them to define what the limits of the First Amendment are, and who is entitled to its protections. Certainly not a meddlesome reporter from Fox News, at least not if they can justify an extended look at his e-mails with no one knowing about it.

I don’t think people realize just how troubling this is.

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