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

his 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.