Rep. Darrell Issa, R-Calif., chairman of the investigative House Oversight and Government Reform Committee, said on CNN, "They had an obligation to look for every other way to get it before they intruded on the freedom of the press
Sen. Patrick Leahy
, D-Vt., chairman of the Senate Judiciary
Committee, said in an emailed statement: "The burden is always on the government when they go after private information, especially information regarding the press or its confidential sources. ... On the face of it, I am concerned that the government may not have met that burden. I am very troubled by these allegations and want to hear the government's explanation."
Rules published by the Justice Department require that subpoenas of records of news organizations must be personally approved by the attorney general,
but it was not known if that happened in this case.
The Justice Department lays out strict rules for efforts to get phone records
from news organizations. A subpoena can be considered only after "all reasonable attempts" have been made to get the same information from other sources, the rules say. A subpoena to the media must be "as narrowly drawn as possible"
and "should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period," according to the rules.
The reason for these constraints, the department says, is to avoid actions that "might impair the news gathering function" because the government recognizes that "freedom of the press can be no broader than the freedom of reporters to investigate and report the news."
News organizations normally are notified in advance that the government wants phone records and then they enter into negotiations over the desired information. In this case, however, the government, in its letter to the AP, cited an exemption
to those rules that holds that prior notification can be waived if such notice, in the exemption's wording, might "pose a substantial threat to the integrity of the investigation." It is unknown whether a judge or a grand jury signed off
on the subpoenas.
The AP delayed reporting the story at the request of government officials who said it would jeopardize national security. Once officials said those concerns were allayed, the AP disclosed the plot, though the Obama administration continued to request that the story be held until the administration could make an official announcement.