Two Judges Told DOJ It Had To Disclose Spying On Journalist; DOJ Found A Third Judge Instead

from the incredible dept

This probably won’t come as a surprise, but as people dig deeper into the DOJ’s surveillance of reporter James Rosen, now it’s come out that the DOJ worked extra hard to avoid having to tell Rosen they were spying on him by bouncing around from judge to judge until they found one who said okay. First, the DOJ argued that they wanted to spy on him for a while, so letting Rosen know (even after a bit of time) would interfere with the ongoing spying:

[US Attorney Ronald C. Machen, Jr.] 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.”

Of course, since any surveillance of reporters is supposed to be especially narrowly focused, it shouldn’t have been allowed for ongoing situations. But it was. And that might be because the DOJ waited until they found a judge who bought their argument.

The new documents show that two judges separately declared that the Justice Department was required to notify Rosen of the search warrant, even if the notification came after a delay. Otherwise: “The subscriber therefore will never know, by being provided a copy of the warrant, for example, that the government secured a warrant and searched the contents of her e-mail account,” Judge John M. Facciola wrote in an opinion rejecting the Obama Administration’s argument.

Machen appealed that decision, and in September, 2010, Royce C. Lamberth, the chief judge in the Federal District Court for the District of Columbia, granted Machen’s request to overturn the order of the two judges.

This suggests, yet again, that this wasn’t a one-off effort, but rather part of a larger, concerted effort to spy on journalists and create chilling effects for whistleblowers.

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Comments on “Two Judges Told DOJ It Had To Disclose Spying On Journalist; DOJ Found A Third Judge Instead”

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horse with no name says:

Re: Re:

I have to laugh when it appears that the Techdirt story mostly following the lines of the anti-Obama crew from Breibart and Drudge.

It would appear that there wasn’t any judge shopping here, rather the justice department fighting for and obtaining a warrant after the first two judges botched the job. The restrictions that would have been in place under the first two judges was not required as a matter of law, and the justice department was smart to keep trying until someone got it right.

Mike may not like the result, but calling it judge shopping is pretty much Republican’t BS.

Anonymous Coward says:

Re: Re: Re:2 Re:

Authority is delegated power.

Whose power is being delegated?

In this country the power of governance is supposed to come from the governed themselves.
There can be no way to determine whether those to whom power has been delegated are responsibly using their authority if journalists do not keep us informed.
This is why restricting the freedom of journalists to pursue their trade threatens the freedom of all of us.

I suspect Mike, like many more of us feels that ‘the national security card’ has been played too many times in the last 12 years, and is it too often being used as an excuse to avoid the scrutiny that citizens must be able to direct at government if liberty is to be preserved.

Anonymous Coward says:

Re: Re: Reuters Reporting

“At the May 15 hearing, Holder said he had never been involved in any decision to pursue a criminal investigation of a journalist and said it would not be “wise policy” to do so.”

“Last week, news outlets reported that Holder had approved a decision to seek a search warrant for Fox News email records as part of a leak investigation. Reuters later reported Holder signed off on a subpoena for telephone records as well.”

…”In a defense of Holder, White House spokesman Jay Carney said that Holder had testified truthfully. Carney told reporters at a briefing on Wednesday there was an “extremely large distinction” between describing a reporter as a co-conspirator and charging him with a crime.”

So the standard now it to list Every bad thing you can on a warrant to get it signed.
Good Guys or Bad Guys, which jumps to that standard?

Chronno S. Trigger (profile) says:

Re: Re:

I would argue against that on a couple of things.

First: there are laws other then the one that was sighted that may make the other two judges right, but not in the way that they thought. Journalists have a few laws to protect their sources. I don’t know the law well enough to be sure, but the right to keep secret sources could easily change the outcome.

Second: The article you link to suggests that the E-Mail account and all E-Mails in said account are owned in their entirety by the ISP, not the reporter. This is where the crux of the DOJ’s argument is. They didn’t have to inform the reporter as it was an ISP owned E-Mail account. Again, I don’t know the law well enough to say for sure, but as a person, I think that’s wrong. I own my E-Mails and no one else.

So, in my opinion, the DOJ is using the letter of one law to defeat the spirit of law in general.

Anonymous Coward says:

Re: Re: Re:

There is some stupid law (Electronic Communications Privacy Act (ECPA)) that if an email sits on a server for too long (180 days) it becomes “unclaimed mail” and doesn’t have the same protections.

One of those things that makes sense in the physical world but is just moronic in the digital one.

art guerrilla (profile) says:

Re: Re: Re:

um, so my faxes belong to who ? boise-cascade who made the paper i faxed with, or brother electronics who made the fax machine, or the phone company who ‘formatted’ it over their phone lines, or the paper company of the recipient of the fax ? ? ?
here’s the thing: it hardly took me 5 seconds of ‘thought’ to think why the ‘argument’ that the ISP “owns” our email is simply ludicrous on its face…

now, as big an ego as i have, i can’t believe judges who -on average, at minimum- have been through college, law school, practiced law for many decades, etc, do NOT see the same HUGE flaw in both logic and fairness…

that leads to one of two inescapable conclusions: the judge(s) who decide in such a manner are either corrupt, or senile…


art guerrilla
aka ann archy

Anonymous Coward says:

To be evenhanded, the result the DoJ was looking for appears to be appropriate given the relevant statute, which does state that notice is not required[1].

Given that two magistrate judges interpreted it differently however I’m somewhat inclined to wonder whether there is not some other controlling statute as well.


out_of_the_blue says:

Geez, Mike, the Volokh link blows away you and Drudge.

Everyone should read it, ESPECIALLY the last paragraph that ‘splains how one can disagree with the secretive intent (as I do) yet the statute is clear, and the first two judges didn’t understand it. — This isn’t “judge shopping”, just normal pursuit of an appeal.

Besides that, at least there was a warrant, so better than usual for DOJ.

“This probably won’t come as a surprise,” but I’m forced to find Mike ill-informed at best, and throwing out a quick re-write soon as his template sorta fit, as usual.

Anonymous Coward says:

Re: Geez, Mike, the Volokh link blows away you and Drudge.

But what needs to be pointed out is that AC has joined the discussion without being a troll about it. He put up his findings and encourages discussion. You should take note of this blue if you ever want to get anywhere. You just incite anger and any point you may have had to the discussion has been destroyed by your continues jabs at Mike as you once again have done.

Rick Smith (profile) says:


I’ve always wondered by the official side in these kind of things even have the right/ability to ‘shop’ around for a judge in the first place.

Seems like a judge should not have any authority to sign an order (or whatever they do in these situations) unless they are officially assigned the duty. And then once ruled on that is the ruling, bar some designated appeal process. The ‘officials’ shouldn’t just be able to go ask another judge, and another, and another, and so on until they get the answer they want.

I mean the last time I checked I, as a citizen can not do that, so why can the government.

I guess what I am saying is that judges should not have their judicial powers outside of specifically assigned cases and that all cases need to be assigned from a known, predefined process. Obviously most of the system already works this way. I just think that the entire system needs to work this way. Judges are people, with personal and political agendas. While as a group I think most do a good job of leaving these out of their work, why leave areas open for abuse.

art guerrilla (profile) says:

Re: Why?

well, you have to get past the necessary illusions that the powers that be inculcate in us from birth:
we are NOT a meritocracy…
laws are NOT made for the greatest good for the greatest number…
the justice system is NOT fair…
the media is NOT our watchdog…
and -most importantly- it is NOT ‘our’ (sic) gummint…

what it is, is a kapitalist Empire to strip the wealth of the planet to benefit the 1%…
…and the pitiful mewlings of the sheeple about this ‘natural’ state of affairs is beginning to annoy our betters: examples are being made…

(see, shwarz, aaron; manning, bradley; kiriakou, john; etc, ad infinitum…)

art guerrilla
aka ann archy

Anonymous Coward says:

Since there was an appeal involved and not true judge shopping, my only question and concern was whether the second judge was notified of the first judge’s findings, and whether the appellate judge was notified of the first judge.
If so, this is the way the system is supposed to work, except for the fact that the reporter had no one arguing on his side.

Another crooked judge says:

Another crooked judge

Royce C. Lamberth, the chief judge in the Federal District Court for the District of Columbia appears to be as crooked as Eric Holder and his bunch of cronies. Unfortunately if anyone goes to jail, I would guarantee Obama will pardon them. What a freaking joke the USA government is.

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