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Anonymous government officials are scrambling to defend the Justice Department's chilling surveillance of Fox News reporter James Rosen after the Justice Department declared Rosen a criminal aider and abettor and co-conspirator to a federal judge in connection with one of the Obama administration's record-breaking number of Espionage Act prosecutions for alleged mishandling of classified information. Anonymous government officials claim that the Justice Department notified Rosen and Fox News' parent corporation that the government had obtained his e-mail records. The Washington Post reports:

“The government provided notification of those subpoenas nearly three years ago by certified mail, facsimile, and e-mail,” according to the law enforcement official, who spoke on the condition of anonymity because the case is ongoing.
Despite WaPo's giving the government the benefit of the doubt (the headline read: "Official: Justice notified News Corp. of Subpoena"), News Corp. general counsel at the time Lon Jacobs has no record of receiving such a notification:
“We do not have a record of ever having received it.” Lon Jacobs, the News Corp. general counsel at the time, said the company had come up empty in a search of his files.

“I would think that’s the kind of thing I would remember,” Jacobs said in an interview Tuesday. “The first thing I would have done is call [Fox news chief] Roger Ailes.”

If the anonymous government official is right, the easiest way to prove it would be for the Justice Department to cough up the records of the "certified mail, facsimile, and e-mail" it sent to Rosen and News Corp. If the Justice Department is struggling to locate the records, it could check with the National Security Agency, which, as my client Bill Binney has repeatedly warned, is in the business of collecting and storing Americans' electronic communications for the past decade.

The government has every motivation to claim it notified New Corp. so as to not get caught (again - see the AP scandal ) diverging from its regulation mandating that subpoenas for reporters' records be brought only as a last resort, that requests be narrowly tailored in content and length, and that the government attempt to negotiate with the journalist.

Meanwhile, the government is again trying to divert the public's attention away from the Justice Department's completely ignoring its own regulation with a new pledge to investigate revising the Justice Department's guidelines on when the government can subpoena journalists. If history is any lesson, the proposed revisions will serve to make it easier for the government to investigate reporters not more difficult (ex. revisions to the FBI's investigative guidelines).

Rather than investigating how it can avoid violating its own guidelines in the future, the Justice Department - or better yet a special counsel - should be investigating why prosecutors deviated so dramatically from the existing guidelines in the AP and Rosen cases.

Obama has ordered Attorney General Eric H. Holder Jr. to review department guidelines for conducting such investigations. Holder’s aides told the Daily Beast that the attorney general felt a “creeping sense of remorse” after reading reports of the search warrant for Rosen’s e-mail.
The fact that Holder's stomach drops when the press and the public are outraged after finding out Holder authorized the surveillance on Rosen is cold comfort considering the Justice Department's unprecedented, chilling attack on journalists and whistleblowers. The nation's chief law enforcement officer didn't have any qualms about trampling on the First Amendment when he could do in secret. If that doesn't make the case of transparency, nothing does. If the Justice Department wants to start salvaging what's left of its reputation after prosecuting whistleblowers and letting torturers off the hook, it could start with giving the public actual evidence rather than anonymous leaks.
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