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Tuesday, May 28, 2013

Did Justice Not Follow Procedures In Fox News/Rosen Case

It appears as if the Justice Department did not follow its own rules when the subpoena for phone records in the James Rosen case. Fox, according to their general council did not receive the notification by "certified mail, facsimile and e-mail" as is supposedly the standard procedure.


Fox is still investigating, however, one would think that such a request would be very memorable and we would also expect that the news organization would have responded by notifying the world of such a subpoena. Once again, it appears as if the Obama Administration is short-cutting the rules for its own benefit. 

Even though James Rosen did not have charges brought against him, that is not a mitigating issue. Justice violated its own rules and Attorney General Holder knew or should have known that was the case. A citizen's rights were violated and  the First Amendment was abridged. Heads must roll.

Conservative Tom


News Corp Says Has No Record of Fox News Subpoena

Monday, 27 May 2013 07:38 PM

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News Corp said on Monday it is still reviewing whether it has any record of a notification from the United States government involving a subpoena for a Fox News reporter's phone records.
The media conglomerate was responding to the Justice Department, which said it told News Corp about the seizure of phone records for James Rosen, a reporter with Fox News, in August 2010.
"While we don't take issue with the DOJ's account that they sent a notice to News Corp, we do not have a record of ever having received it," said News Corp spokesman Nathaniel Brown, who added the company is looking into the matter.
Fox News, which is owned by News Corp, has said it never received a notification from the government.
Lawrence Jacobs, the former worldwide general counsel at News Corp during 2010, told Reuters he had no recollection of ever receiving it nor had News Corp found any evidence when it combed through Jacobs' emails.
"I have no memory of it," he said.
A law enforcement official who asked not to be named said in a statement Monday that "In the investigation that led to the indictment of Stephen Kim, the government issued subpoenas for toll records for five phone numbers associated with the media. Consistent with Department of Justice policies and procedures, the government provided notification of those subpoenas nearly three years ago by certified mail, facsimile, and e-mail." The official said notice went to both News Corp and to the reporter, Rosen.
The Fox subpoena is the latest twist involving an acrimonious battle between the media's right to publish and the government's ability to investigate leaks involving classified information.
Guidelines for the Justice Department have for decades required the personal involvement of the attorney general when prosecutors are considering a subpoena to the media and for the media organization be notified of any action.
Last week, the Justice Department said that Attorney General Eric Holder and other senior officials vetted a decision to search an email account belonging to Rosen whose story on North Korea prompted a leak investigation.
Rosen reported in June 2009 that U.S. intelligence officials believed North Korea would conduct more nuclear tests in response to U.N. sanctions.
Rosen's alleged source, former State Department analyst Stephen Kim, is scheduled to go to trial as soon as next year on charges that he violated an anti-espionage law. Rosen was not charged and prosecutors have given no indication they plan to charge him.
In a statement on Friday, the department said the May 2010 search warrant for the reporter's Google email account followed all laws and policies.
The Associated Press revealed earlier in May the government secretly seized the phone records of several AP offices and reporters describing the action as a "massive and unprecedented intrusion."
© 2013 Thomson/Reuters. All rights reserved.


Read Latest Breaking News from Newsmax.com http://www.newsmax.com/Newsfront/news-corp-no-record/2013/05/27/id/506533?s=al&promo_code=13A2A-1#ixzz2UanIrkLS
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10 comments:

  1. Now that this blog has become a mirror for Newsmax, I have become aware of how shoddy and biased their "journalism" is in favor of Republicans and whatever agenda Republicans happen to be promoting at any given time.

    From the Wikipedia article on Newsmax…

    "In March 2009, Forbes ran a feature on Newsmax describing it as a "media empire" and the "great right hope" of the Republican Party. Forbes noted that after just a decade of operations it had become a "media powerhouse" - and had surpassed such well known websites as the Drudgereport in web visitors. According to the magazine, Newsmax draws 3.8 million unique visitors monthly. Political analyst Dick Morris was quoted as saying that Newsmax had become the "most influential Republican-leaning media outlet" in the nation."

    http://en.wikipedia.org/wiki/Newsmax_Media

    ------------
    As one who considers the Congressional Budget Office, the U.S. Census Bureau, OECD, and the Bureau of Labor Statistics data as biased sources of facts (!!!), I wish you would adopt a bit more skeptical attitude toward NewsMax.

    I will post a fact-checking note on this article soon. Peace.

    --David

    ReplyDelete
  2. David, first of all Newsmax has some great article including the one above which came from Thomson/Reuters. It was a reprint. In fact many of the articles are not newsmax reported.

    tom

    ReplyDelete
  3. Additionally David, the story, if accurate, is damning. It shows the duplicity of the Obama White House, the absolute abuse of the first amendment and a severe violation of James Rosen's rights as a citizen of this country. We believe that it is an accurate story as the White House has shown that laws do not mean anything and Obama himself has said he will enforce only those laws that he agrees with.

    Questioning the source of information is not the way to condemn the information. Find another source that says the White House (other than Holder, The White House) followed all the rules, sent out the required certified mail, email and faxes and we will publish. However, we believe that this Administration is out of control and will do anything to harm your and my rights as citizens.

    ReplyDelete
  4. Many relevant facts are missing from the Newsmax story. I have taken an interest in this matter and done quite a bit of fact-checking. I will post findings soon.

    --David

    ReplyDelete
  5. Fact-checking…

    Before getting to the Newsmax story, let me state the legal foundation for DOJ seeking a warrant under the Electronic Communications Privacy Act for emails of a reporter suspected of soliciting and receiving TS/SCI classified top secret national defense information. I refer you to 42 USC § 2000aa which states…

    "…a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793..." That is EXACTLY what Rosen was getting (i.e., section 793 information).
    http://www.law.cornell.edu/uscode/text/42/2000aa

    Magistrate Judge Facciola issued his notification order on July 21, 2010. The government appealed that order with a "Motion to Vacate" and others. The Chief Judge United States District Court granted those motions on August 5, 2010 that the warrant and other documents remain sealed until 14 days after the Motion to Vacate was adjudicated. On August 23, 2010, Facciola denied the Motion to Vacate, having been informed by Magistrate Kay (who approved the warrant) that, as stated in his written opinion, the government "would notify the subscriber without delay." Apparently, this happened on August 27, 2010 (the same day Kim was indicted) along with notice to NewsCorp…

    "On Saturday, a Fox News executive said that the notice had gone to News Corp., its parent company, on Aug. 27, 2010, but that Fox News was not told until Friday."
    http://www.newyorker.com/online/blogs/newsdesk/2013/05/news-corp-vs-fox-news.html?mbid=social_retweet

    Even if Rosen had not received official notice on August 27, he would have known that day anyway as soon as he learned that Kim was indicted. He was not named in the warrant, but he was almost immediately identified by the press, since he was known to be the reporter who wrote the story related to Kim's indictment.

    Although the government did not seek further review of its Motion to Vacate, it did seek review and reversal of Facciola's order. That order was, in fact, reversed November, 2010.
    I read the entire opinion. It gets into some very technical legal stuff, but I can tell you the crux of it. In the opinion of the Court, the key legal requirement for notification in the Rosen case is Rule 41(f)(1)C of Federal Rules of Criminal Procedure which requires that: "The officer executing the warrant must give a copy of the warrant and a receipt for property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property."

    The government was in compliance with this rule. A copy of the warrant was left at the place where the officer took the property (Google). On this basis, The Court reversed Facciola's order that the government must give notification to the subscriber. That is not required under the Rule.

    Having spent a couple hours researching this, it is clear that the government gave notification to NewsCorp and Rosen on August 27, 2010, but they were NOT legally required to do this in the opinion of the Chief Judge United States District Court.

    If NewsMax were doing a half-decent job of journalism, they would have included all these facts in their story.

    --David

    ReplyDelete
  6. It appears as if the Judge that Holder went to was one very comfortable with the Administration. In other words, they could say that David was a pedophile who owns 3000 guns and without any other information, the judge would give the Administration the warrant.

    One must be very careful assuming that a Judge would be judicious! Many are just political hacks who will do anything the party wants them to do.

    David, I think you are very naive as to the ways of the world. You seem to believe whatever the Administration says, and blame anyone the Administration blames. This is one of the most corrupt groups since the Nixon years. You need to become as skeptical about them as you are with what we write.

    BTW, I do appreciate your comments, please keep them up--even if we do not agree. It is good for you and me and the other readers. Thanks.

    ReplyDelete
  7. I gave you the statute that supports the warrant (42 USC § 2000aa)...

    "…a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793..."
    http://www.law.cornell.edu/uscode/text/42/2000aa

    Instead of commenting on the law, you attack the judge who issued the warrant. The statute clearly states what conditions must be met for the government to obtain the warrant. It explicitly states that this includes unauthorized communication of "restricted data under provisions of section 793..." If you had read the FBI affidavit, you would know that Rosen was soliciting and received TS/SCI data from Kim. That is quite evident from the emails and other evidence in the affidavit. He specifically asks for obviously classified documents. He asks to have physical possession of them. There were also numerous meetings between the two in the time-frame of the leak, as documented by the FBI.

    I will give you just one email from "Alex" (Rosen's chosen fake name) to "Leo" (Kim's fake name)…

    "Thanks Leo. What I am interested in, as you might expect, is
    breaking news ahead of my competitors. I want to report authoritatively,
    and ahead of my competitors, on new initiatives or shlfts in U.S. policy,
    events on the ground in [the Foreign Country], what intelligence is picking
    up, etc. As possible examples: I'd love to report that the IC10 sees
    activity inside [the Foreign Country] suggesting (description of national
    defense information that is the subject of the intelligence disclosed in the
    June 2009 article]. I'd love to report on what the hell [a named U.S.
    diplomat with responsibilities for the Foreign Country] is doing, maybe on
    the basis of internal memos detailing how the U.S. plans to [take a certain
    action related to the Foreign Country) (if that is really our goal). I'd love
    to see some internal State Department analyses about the state of [a
    particular program within the Foreign Country that was the subject matter
    of the June 2009 article], about [the leader ofthe Foreign Country] .... In
    short: Let's break some news, and expose muddle-headed policy when we
    see it- or force the administration's hand to go in the right direction, if
    possible. The only way to do this is to EXPOSE the policy, or what the
    [Foreign Country] is up to, and the only way to do that authoritatively is
    with EVIDENCE."

    You can get the whole affidavit here...

    http://www.google.com/search?q=Rosen+FBI+affidavit+pdf&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a

    Any reasonable person -- even you -- can read this affidavit and conclude that Rosen is almost certainly the reporter to whom Kim leaked. Nobody at Fox News is claiming the judge issued this warrant without probable cause. I'd say it is "naive" to assume that any judge in D.C. would dare issue a warrant, especially in what he surely knew was going to turn into a huge media backlash, without seeing substantial probable cause linking Rosen to Kim.

    I hereby challenge you to read it and report back your conclusions on this blog!

    --David

    ReplyDelete
  8. They went Judge shopping for the most liberal judge. He would have given them the warrant if they gave him a ham sandwich!

    However, the real issue is why did they name a reporter a co-conspirator? It is the job of a reporter to report, to get the information. Kim was the apparent source, yet to be proven, and he should be punished. However, if a source gives a reporter classified information, it is not his responsibility to keep it secret.

    The chilling part of this is the naming of the reporter -- he did not steal the documents. Get it!

    ReplyDelete
  9. They did not need a "liberal" judge. Any judge with two brain cells can read the affidavit and draw the obvious conclusion that Rosen solicited and received TS/SCI classified information from Kim. I can save you the trouble of reading the 36pp. FBI affidavit on Rosen. This article has a very concise summary of the evidence in the affidavit connecting Rosen to Kim. You can read it in 5 minutes…

    http://www.unionleader.com/article/20130601/OPINION02/130609970&template=mobileart

    The affidavit does not (as idiot David Gregory said on "Meet the Press" yesterday) "name Rosen as a co-conspirator." The affidavit says POSSIBLE "aider, abettor, and/or co-conspirator." Anybody who studied "Logic 101" in school understands the meaning of the logical operators "possible" and "and/or." It means A or B or C, or any combination of A,B,C, or possibly none of them. If Rosen had stolen the documents or offered Kim money to get them, that would be a crime. If he had done that, he would be facing criminal prosecution. He did not commit a crime by publishing his article, and he has not been charged with any crime. Kim, not Rosen, was the primary target in the leak investigation, but the DOJ needed Rosen's emails and phone records to make their criminal case against Kim. The media shield law is NOT absolute. It protects media against many classified documents (such as Pentagon papers, etc.), but not against TS/SCI documents. This is a technical point that not many in the media understand and/or are willing to talk about. If someone in Kim's position leaks TS/SCI data, the government is fully authorized by law to seek a warrant on ANYBODY'S emails and phone records in order to track down the leaker. That is what happened in this case.

    --David

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  10. By the way, the "liberal" judge Facciola rejected the Obama administration's motion to delay notification to Rosen that his emails were searched. His ruling was reversed on appeal for reasons I gave you in my earlier note.

    --David

    ReplyDelete

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