Magistrate who OKd warrant against James Rosen was previously criticized on Fox News

Published by: Dan Calabrese on Tuesday May 21st, 2013

By DAN CALABRESE - Agendas.

When the Obama Justice Department wanted to get a warrant so they could read the e-mails and review the phone records of Fox News reporter James Rosen, they went to U.S. Magistrate Alan Kay, who granted the warrant on the basis of the DOJ's claim that Rosen may have been guilty of criminal conspiracy. That flies in the face of all legal history concerning reporters who doggedly pursue information, even classified information.

Yet Kay granted the warrant. Why would he do that? Well he may not be a big fan of Fox News.

In 2006, Kay issued a ruling favorable to Guantanamo Bay detainees and highly critical of the Bush Defense Department in their treatment of the detainees. According to Kay's Wikipedia page, Fox News quoted extensively on the air from Kay's ruling in the case of Salim Muhood Adem v. George W. Bush. I have not seen the segment, but knowing Fox News - particularly on issues like Gitmo in the post-9/11 years - I think it's a pretty safe guess that they weren't quoting Kay's ruling as a means of praising his decision.

This is crucially important. In order to secure the warrant that allowed them to read his e-mails, the Obama Justice Department accused Rosen of criminal conspiracy, and in order to make that stick - against all legal precedent - they had to find a judge who was willing to buy the argument. Kay was their man.

Ann Marimow of the Washington Post explains how unusual this is:

The case centers on Stephen Jin-Woo Kim, a former State Department arms expert accused of passing details to Rosen from a classified report within hours of its release to a small circle within the intelligence community. Investigators also targeted Rosen, calling him a co-conspirator in an affidavit seeking a search warrant for Rosen’s personal e-mails.

In the affidavit, FBI agent Reginald Reyes said Rosen “asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information.” He added, “The reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

That detail particularly irked media lawyers and transparency experts, who said the Justice Department had crossed a line by equating routine reporting practices with possible criminal activity.

The FBI did not ultimately charge Rosen with a crime, only using the insinuation that he had committed one to justify the warrant they were after to read his e-mails and get access to his phone records.

Do you realize what this means? It means that any member of the media who seeks out information could be similarly charged with a crime in order to justify such a tactic. It means that if Obama doesn't like a particular reporter's line of reporting or analysis, all he has to do is tell Eric Holder to contrive something that wreaks of criminality, then find a like-minded judge, and that reporter's personal communications can be seized and monitored by the government.

As Marimow points out, there is no history of journalists being charged with criminal activity for doggedly pursuing information, regardless of the tactics they use to get it. So what made DOJ think such an accusation was justified here? Maybe because they knew they were going to a judge who wasn't a fan of Fox News.

How creepy is this?

As far as I'm concerned, this is an even bigger scandal than the one involving the IRS, which is not small.

If they can do this to James Rosen, they can do it to anyone.

And apparently they're more than willing.