Justice asked judge to keep Fox reporter in the dark over tracked email

The Justice Department pleaded with a federal judge to keep a Fox News reporter indefinitely in the dark as it tracked his email in a national security leaks case.

A new set of exhibits unsealed and made public this week show U.S. Attorney Ron Machen argued in 2010 that the traditional 30-day notice period did not apply to Fox News reporter James Rosen. Justice wanted to secretly monitor Rosen’s Gmail account.

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“Where, as here, the government seeks such contents through a search warrant, no notice to the subscriber or customer of the e-mail account is statutorily required or necessary,” Machen wrote in the June 2010 motion. "Thus, this court's indication on the face of the warrant that delayed notice of 30 days to the customer and subscriber was permissible was unnecessary."

Machen, through a separate court order, also successfully stopped Google from telling Rosen that the government was spying on his e-mail account. Machen demanded to see all of Rosen’s e-mail records, including his deleted messages, e-mails in his trash folder and all attachments sent to and from the reporter.

The government successfully argued to keep the search warrant under seal for 18 months before making it public in November, 2011.

According to a sworn affidavit from an FBI special agent, making the warrant public in the midst of the investigation  may “cause subjects to flee, may cause individuals to destroy evidence and/or otherwise jeopardize this investigation.”

In November, 2011, the government moved to unseal the warrant and its accompanying documents.

Fox News CEO Roger Ailes in a memo to his employees on Thursday condemned the government’s actions, comparing them to the McCarthy era.

“The administration’s attempt to intimidate Fox News and its employees will not succeed and their excuses will stand neither the test of law, the test of decency, nor the test of time,” Ailes wrote in the letter. “We will not allow a climate of press intimidation, unseen since the McCarthy era, to frighten any of us away from the truth.”

President Obama on Thursday asked Attorney General Eric Holder to conduct a review of his department’s guidelines governing leak investigations and news organizations. Holder said he would issue the report by July 12 after promising to meet with a number of different media organizations.

Tensions between the administration and the press were strained further this week by reports that Justice targeted Rosen as a criminal co-conspirator, secretly examining his phone records and personal emails in 2010 while tracking his visits to the State Department using his press badge’s data.

It was revealed this week that the warrant allowing for the DOJ to spy on Rosen was signed personally by Holder, according to an anonymous law enforcement official who spoke with NBC News.

Rosen came under Justice’s scrutiny for a story he wrote in 2009 stating that U.S. intelligence officials believed North Korea would likely test more nuclear weapons in response to new United Nations sanctions. Rosen said in his article that the CIA analysis was based on sources inside North Korea.

Justice later identified State Department employee Stephen Jin-Woo Kim as the source of the leak. Kim faces federal charges for disclosing classified national security information and could see a trial as soon as next year.

Officials expanded the investigation to include Rosen, who federal authorities say may have acted as “an aider, abettor and/or co-conspirator” in the leak, according to a sworn affidavit from an FBI agent.

The Fox case follows news that the DOJ secretly subpoenaed two months' worth of phone records from more than 20 Associated Press employees last year as part of an investigation into leaks.

The House Judiciary Committee has launched its own investigation to determine whether the DOJ acted legally or violated the Constitution. And bipartisan groups of lawmakers in both the House and Senate have introduced legislation that would require courts to sign off on any DOJ requests to spy on journalists as part of the department’s attempt to crackdown on government leaks of classified information.


--This report was updated at 6:45 p.m.