No Easy Answers

Friday, March 16, 2007

Plame Leak House Oversight Hearing of March 16, 2007

As predicted, the debate reverts to "leak." As SOME people are aware, the Libby trial was about LYING, but that sure doesn't stifle the curiosity on the leak angle. In fact, Libby's recent obstruction, false statements and perjury convictions seem to have stoked interest in the leak subject. The fire is burning HOT right now.

I further observe ("opine", for you pedants) that those who assert the political motive is weak -- for Libby to lie about "leaking Plame" -- are either dunces or are deliberately obtuse. This hearing is highly politically charged, but it is no more politically charged than the same issue was in October, 2003, when Libby was asked questions by the FBI. It was, and remains! in the White House strong interest to NEVER have to admit that anybody in it, let alone Libby or Rove, was responsible for informing a reporter that Ms. Wilson worked at the CIA.

A webpage of the Committee on Oversight and Government Reform, Disclosure of CIA Agent Identity, has links to many of the documents, as well as a link to the history of (mostly Democrat) interest in the leak itself.

Links repeated here, and this page may eventually contain HTML conversions of the correspondence between Waxman and Fitzgerald, pertaining to Fitzgerald's appearance at this hearing.

If you catch this post shortly after it's first appearance (9:57 a.m. Friday, March 16), you can also catch the hearing on C-SPAN. I'll have half of an ear listening. The hearing is a farce.

Note: I've listened to the initial part of Waxman's opening comments, and he is VERY strongly asserting that Plame was covert. He met with General Hayden of the CIA as part of preparing his opening remarks. I'll post a transcript of Waxman's opening statement after it is made available, but this opening statement will CERTAINLY feed a firestorm of debate between the moonbats on the left and the moonbats on the right.

Representative Davis, the ranking Republican, says the outing was wrong, but he's not sure about the efficacy of this hearing. He also says there is little that can be accomplished, given that the CIA won't permit probing whether or not Plame was covert, and won't admit that she isn't/wasn't. His written remarks don't include the "outing was wrong" statement, for that one will have to review the video/audio tape. He said it, I heard it. I heard it again on the first replay, at 4:23 p.m. "At the outset ... outing of Mrs. Wilson's identity was wrong."

Heh - Plame flatly denies that she had anything whatsoever to do with ex-Ambassador Wilson being assigned to a Niger trip. She testifies that she did not suggest, recommend, or otherwise influence the choice in any way whatsoever. She was just a message-bearer between the CIA and her husband. She further says that the Senate report that says she had involvement in Wilson getting the assignment is incorrect on the facts, and that it is an additional comment inserted by three Republican Senators (Roberts, Bond and Hatch).

Senate Report of Pre-war Intelligence on Iraq
Additional Views: Chairman Pat Roberts joined by Senator Christopher S. Bond, Senator Orrin G. Hatch
Conclusion: The plan to send the former ambassador to Niger was suggested by the former ambassador's wife, a CIA employee.
The former ambassador's wife suggested her husband for the trip to Niger in February 2002. The former ambassador had traveled previously to Niger on behalf of the CIA, also at the suggestion of his wife, to look into another matter not related to Iraq. On February 12, 2002, the former ambassador's wife sent a memorandum to a Deputy Chief of a division in the CIA's Directorate of Operations which said, "[my] husband has good relations with both the PM [prime minister] and the former Minister of Mines (not to mention lots of French contacts), both of whom could possibly shed light on this sort of activity." This was just one day before the same Directorate of Operations division sent a cable to one of its overseas stations requesting concurrence with the division's idea to send the former ambassador to Niger.

James Knodell testifies that there is no investigation in the White House as to whether or not, or who, if there was a leak, told reporters that Ms. Wilson worked at the CIA. Well no kidding - the investigation was turned over to first, the Department of Justice, and then eventually to a Special Counsel. The White House NEVER looked into its own conduct, and one might reasonably ask why it should have, given that it was under the microscope by others.

Mr. Knodell will report back to the Committee, on the question of his office's policy to conduct an investigation, or not, when an outside investigation is underway. His unstudied answer is that the White House would not conduct a collateral investigation. Bill Leonard amplifies this point, inasmuch as an internal investigation might be taken or viewed as obstruction of justice. That's hard to credit, unless internal investigations attach and cause the affirmative assertion of "state secret" or "executive privilege."

That the White House didn't investigate itself on this is obvious.

Toensing does a good job explaining the legal meaning of "covert." Representative Davis says that nobody really made the case the Plame was covert, that this status was "assumed" to be correct for purposes of the hearing (he seems okay with this) and that the hearings hadn't been focused on making that legal/factual determination. Davis properly lays responsibility at the CIA for not keeping the secret in the first place. That it's unreasonable to expect the people in the WH to keep a secret, if they aren't expressly told the information is to be guarded.

Mark Zaid notes the distinction between a criminal violation under IIPA, and administrative or other penalties short of criminal, for what it's worth.

Toensing and Waxman are arguing as to whether or not Plame was covert under the act. She says Plame wasn't, he says she was. The debate never gets to the relevant analysis. Pretty good fireworks. Waxman has a career in punditry. Toensing doesn't know how to deal with the word "leak" in a question from Waxman (Waxman unreasonably wants a Yes/No answer here) but she generally wants "leak" to be narrowly construed to apply only to an IIPA violation.

Toensing blames the CIA for not protecting information, and she blames the prosecutor for using legal process where there is no violation. Her complaint as to prosecution is not responsive to the decision to undertake a whodunnit investigation, nor is it responsive to the question of how to handle false statements in the context of an official investigation.

Toensing is sticking to her guns "under oath," that Plame was not covert under the meaning of the IIPA. She should give the factual bases she uses to reach that conclusion, and has NOT done a good job of reinforcing that.

The questioners are noting the difference between the Executive Order for classification as compared with the IIPA. That is, there can be releases of classified information that violate the Executive Order that do not constitute a violation of the IIPA. Toensing implicitly admits that the White House disclosed to reporters that Ms. Wilson worked at the CIA. I'm still looking for an official statement from the White House that either Rove or Libby did disclose to reporters that Ms. Wilson worked at the CIA.

Asked if Toensing thinks "this" was a serious matter (referring, I think, to leaks in general wothout regard to them ultimately being "criminal")? She directs her answer to a focus on violations of the IIPA, without regard to other analytical frameworks. She notes Grenier's testimony in the Libby trial, that he, when asked, said he did NOT tell Libby that Ms. Wilson was classified.

Waxman is keeping the record open so he can enter items that rebut Toensing's testimony.

Elsewhere, and in a very easy to find place, I have listed the deadlines for filing legal pleadings in the Libby post-trial process. Happy hunting!

Here are the letters and other material related to these hearings. You can tell from the spelling and other errors that Fitzgerald isn't too bright. Just kidding. These are mostly the raw results of OCR conversion.

HENRY A. WAXMAN, CALIFORNIA TOM DAVIS, VIRGINIA CHAIRMAN RANKING MINORITY MEMBER ONE HUNDRED TENTH CONGRESS COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 2157 RAYBURN HOUSE OFFICE BUILDING WASHINGTON, DC 20515 March 8, 2007 The Honorable Patrick J. Fitzgerald Special Counsel Office of Special Counsel Bond Federal Building 1400 New York Avenue NW Ninth Floor Washington, DC 20530 Dear Mr. Fitzgerald: I commend you on your professional and thorough investigation into the disclosure of Valerie Plame Wilson's identity as a covert CIA agent. It is apparent that you followed the facts where they led and served the interests of justice and the American people. By necessity, your investigation had a narrow legal focus: Were any federal criminal statutes violated by White House officials? Your investigation, however, has raised broader questions of national significance. I am writing to invite you to meet to discuss how the Committee on oversight and Government Reform, which is the principal oversight committee in the U.S. House of Representatives, can become informed of your views about these broader issues. The identity of undercover CIA operatives is supposed to be one of the most closely guarded national security secrets. There are a host of administrative requirements designed to safeguard this type of information from disclosure. Yet the trial proceedings raise questions about whether senior White House officials, including the Vice President and Senior Advisor to the President Karl Rove, complied with the requirements governing the handling of classified information. may also raise questions about whether the White House took appropriate remedial action following the leak and whether the existing requirements are sufficient to protect against future leaks. Your perspective on these matters is important. After the verdict was announced yesterday, one juror expressed the view that former Chief of Staff to the Vice President Lewis "Scooter" Libby was only a "fall guy." This juror's views encapsulated questions that many in Congress and the public have about whether the

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Honorable Patrick J. Fitzgerald March 8, 2007 Page 2 ultimate responsibility for the outing of Ms. Wilson rests with more senior officials in the White House. This is another area where you have a unique perspective. I recognize that as a federal prosecutor, you are constrained by the rules of grand jury secrecy. But you undoubtedly recognize that Congress has a responsibility to examine the policy and accountability questions that your investigation has raised. As a result of your investigation, you have a singular understanding of the facts and their implications that bear directly on the issues before Congress. I respectfully request that you meet with me and the Committee's Ranking Member, Tom Davis, to discuss the possibility of testifying before the Committee and other means by which you can inform the Committee about yow views and the insights you obtained during the course of your investigation. I look forward to the opportunity to speak with you. Sincerely, Henry A. Waxman Chairman cc: Tom Davis Ranking Minority Member

_Of_ce ofSpecial Cou_sel Pn_cn_Fi__a_ Cao_n: O__anFed__l_i_i_ w_ni_Dn qa_= aond _lrdl_ __r CbNMrf _IPSdNM__nhar, Pp Proor _OOON_w yomrtgye, N_rhh_or __o, rll_oc _óD_ g_mngbn, DG H_2OJ_O _rz) ____J7OO __o__ JI_-7_87 Pbraodhg__co_O_ddnw ro __ Waph_g_n OOa v & _elefax g r M&il MgKh 14, 2007 Tbe Nonorable Henrya. Wax_ao rn_an, Co_inee on Ov_si&_t amd Gov_m_t PRfQ_ Uoited Stateg House ofRpesrntaáv_ zLs7ReybwHouseo_Geauilding W_oq DC ZOSIS_ól43 Dear Co__&l Wa_man_ I wñte íA _sponsg to yow lbn_ ofMarch 8, 2007, wbiGh invited _be _o meet wib you and _MonOerD&Ñs to discuss Ulepos_biliyof_yteshl_ng before bG Co_iwee. Ibelieve it ig _po_t to adÑse you pro_pUy 9fthe _ts 00 any asis&c.e f could proYidc to me Co_tt_, _ourM_clt 8 leWer ouflioeB pgciSc arga_ 9fPQt_Óal tgsdhony_ _cluding myÑews o_! (I) _baberp_GularOmo_ó "co_liedwimule _quú__s gove_g be hal__mg ofclassified infb_baó'oq" aod 'hbeb_ t_e WbiR House took appropriate re_edial ach'oo;" (2} w_emer "ul__erespon_bili_ _rMeoutiDg ofM. Wi__Qo"rasts _i_p#sons oU_er_M- _ibby, QAd (3) m_rg broadly, wbeUl_ exis_ __babve requir_oeots óafe_g Gl8ssiS_d ínfðrmatioo arg su_cimt tó prot_ ggainst hhre 3_. as _n ini_aI Iogtter, _ n9te bat be _att_ ofUni_edSt4_es v_ _ Zew_s L_b4_ OS-GR_3gq_ is stillpe_d_gin V_eUmitad Stat_ Disbict Court fQrtheDis_ctofCo_wbi& M, Libbybas_KeoUy been conviGted buthasnotyatbeen srntRlcgd. _bedermue is sch_uledb fileamotioo foranew oial pri9rb me s_tenciog date_ ObÑowly_ _yputah've appe&byM_ _ibbyhas _eithe_ bem fi_ed _orresolved. Based upon GoDsultatio# wim tha D__ent oE_ustiGe, I bave beea aavised ofits loAg-stand_gpolicyafdeclining _o p_oÑde non-pub_i_ iafo_ahon about pefldiog Iaw _fowent make_s7 incl_g briek_gs, Additio_alIy, a_ you note, I would _otbe inposih'on to share with you ioEormaboA covgredby_ule ó(e_ of_e Federal RulesofC_alRotedure. Wehave snupulously a_ered to bg Kqu_em_ts 9f_1e Rule _u_qut tbia pro_ing and _ust cont_ue to do so. I aIso do not believe it wouldbe app_priatg forme to offer op_o_s, as y9ur lekrr suggests. _e Com_ttee may ___ aboNt V_e __mate rgsponRibili_ of_or whi_é Nouse ormcials for _he disGlosure ofMs. Wilso_'& id_b_, or_e __ieoGyof_lg rRn__ meas_ mat WbiR Howe o_cigls _ok aR_ Ule leák. ProseGuto_ hadih-on&_y reb_n hom co__tiog outside of tbe

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_he Honor_ble H_A. W_man c_, CoMÓttee 00 Ovmi_t aod Gov_noeot _efo_ Marah 14, 200_ Page 2 . _ . judicial pr°cesq oo_le acbow ofp_ns not Gharged_b_ okenses. Such indivídu&8 have si_fic_tprivacy_d due prbtass i_tarasts Ulat deswve p_tectioo as do _e iote_al delib_bons ofprosKutors relañng t9 beú Gooduct. Moreover, _y opinioM Wa_ l migbt o_er 00 _ese topics wouldbe _9unded in gi_Sc< pan o_ _djury rfonohon _lat rg_&insp_t_ed byRuIg ó(e). _ Ulat v_n, I do Aot _ I coul'd ofl_ cogent Ñaws or Qpimi9ng 00 be adeq_ ofbe Gwe_t _tahtes a_d _o_bative reg_atio_6 rmat ad__a i_propn discloswgs ofGla8giÓ_ iofo_abo_, wbi_e et Ule same _ma amppi_g bQ_ suGb views myrgfhmces to par_G__p_o#g wbose to_ldurt wa_ at i_sue inUle iovgg_gatio_but wbo w_enot Gharged_ba _e orref__es to M_ Libby, wbose case is sbll p_lding_ YOu may _ish to reÑew Ule substa_tial iorormation gaUl_ed d_g our i#ve_tigabon, __ (espec_ály as it GonGa_ed M. Libby in pa_úcular), whicb hm ba_qme a._att_ arpub__c rgco_d as args_t oFGortproGegdings andtbe mal. M_y_f_le co_ ó_ig _e publicIydocketed an4 Qf . cowe, fhe mal tgstimonyand al_ biaI gxhíbits ate ma_tRs qfpublicr_ord. I app_eciate _e Com#littee's i_porta_t ovrrsigbt _lterests, bu_ a_so 4urt bat you _II apprecia_e mypó&iLon in V_is matter, p_wl__ywhi_e the c_al case rRoajM p_diog and in Iigbt orule conRd_tia_ty god privaGy int_#ts at stakg. Very buly y9u_, PATRICK I. Rrrzc_ Special Gouwel GG: me Hooorable _om DaÑs ; R_ng Mirmoriy M_ber . ., Co_ttee on Ovg_gbf,aod Gove_m_t Refono U,S_ Howe ofRpp_sentativ_ 2348 Raybum Howe omte Building Washin&on, DC 20515-461I (Via Tr__efan & Expr&ss Mail_ Rcbard A. H_l_og AcÓog Assistant ANomey _e_er& omce ofLe_slah`ve A_airs DPp_On&ot ofIustice, Room 1145 g5O pgMsylva_ia Qv_ue, N-W_ . wgsmgton, DC 20530

HENRY A. WAXMAN, CALIFORNIA TOM DAVIS, VIRGINIA CHAIRMAN RANKING MINORITY MEMBER ONE HUNDRED TENTH CONGRESS COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 2157 RAYBURN HOUSE OFFICE BUILDING WASHINGTON, DC 2051 J6143 Statement of Rep. Henry A. Waxman Chairman, Committee On Oversigbt and Government Reform Hearing 0n Disclosure of CIA Agent Valerie Plame Wilson's Ideohty and Wbite House Procedures for Safeguarding Classified Information March 16, 2007 Today, the Committee is holding a hearing to examine how the White House handles highly classified information. In June and July 2003, one of the nation's most carefully guarded secrets - the identity of covert CIA agent Valerie Plame Wilson - was repeatedly revealed by Wite House officials to members of the media. This was an extraordinarily serious breach of our national security. President George W. Bush's father, the former President Bush, said - and I quote - "I have nothing but contempt and anger for those who . . . expos[e] the name of our sources. They are, in my view, the most insidious, of traitors." Today, we will be asking three questions: (l) How did such a serious violation of our national security occur? (2) Did the White House take the appropriate investigative and disciplinary steps after the breach occurred? And (3) what changes in White House procedures are necessary to prevent future violations of our national security from occurring? For more than three years, a special prosecutor, Patrick Fitzgerald, has been investigating the leak for its criminal implications. By definition, Mr. Fitzgerald's investigation had an extremely narrow criminal focus. It did not answer the broader policy questions raised by the release of Ms. Wilson's identity. Nor did it seek to ascribe responsibility outside of the narrow confines of the criminal law. As the chief investigative committee in the House of Representatives, our role is fundamentally different than Mr. Fitzgerald's. It is not our job to determine criminal culpability. But it is our job to understand what went wrong, to insist on accountability, and to make recommendations to prevent future abuses. We begin ths process today.

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This hearing is being conducted in open session. This is appropriate, but it is also challenging. Ms. Wilson was a covert employee ofthe CIA. We cannot discuss all of the detalls of her CIA employent in open session. I have met with General Hayden, the head of the CIA, to discuss what I can and cannot say about Ms. Wilson's service. My staff has also worked with the agency to ensure these remarks do not contain classified information. I have been advised by the CIA that even now, after all that has happened, I cannot disclose the full nature, scope, and character of Ms. Wilson's service to our nation without causing serious damage to our national security interests. But General Hayden and the CIA have cleared these following comments for today's hearing. During her employent at the CIA, Ms. Wilson was under cover. Her employment status with the CIA was classified information prohibited from disclosure under Executive Order 12958. At the time of the publication of Robert Novak's column on July 14, 2003, Ms. Wilson's CIA employent status was covert. This was classified information. Ms. Wilson served in senior management positions at the CIA, in which she oversaw the work of other CIA employees, and she attained the level of GS-14, step 6 under the federal pay scale. Ms. Wilson worked on some of the most sensitive and highly secretive matters handled by the CIA. Ms. Wilson served at various times overseas for the CIA. Without discussing the specifics of Ms. Wilson's classified work, it is accurate to say that she worked on the prevention of the development and use of weapons of mass deshuction against the United States. In her various positions at the CIA, Ms. Wilson faced significant risks to her personal safety and her life.

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She took on serious risks on behalf of her counhy. Ms. Wilson's work in many situations had consequences for the security of her colleagues, and maintaining her cover was critical to protecting the safety of both colleagues and others. the disclosure of Ms. Wilson's employent with the CIA had several serious effects. First, it terminated her covert job opportunities with CIA. Second, it placed her professional contacts at greater risk. And third, it undermined the trust and confidence with which hhre CIA employees and sources hold the United States. This disclosure of Ms. Wilson's classified employent status with the CIA was so detrimental that the CIA filed a crimes report with the Department of Justice. As I mentioned, Ms. Wilson's work was so sensitive that even now, she is still prohibited hom discussing many details ofher work in public because ofthe continuing risk to CIA officials and assets in the field and to the CIA's ongoing work. Some have suggested that Ms. Wilson did not have a sensitive position with the CIA or a position of unusual risk. As a CIA employee, Ms. Wilson has taken a life-long oath to protect classified information, even after her CIA employent has ended. As a result, she cannot respond to most of the statements made about her. I want to make clear, however, that any characterization that minimizes the personal risk Ms. Wilson accepted in her assignments is flatly wrong. There should be no confusion on this point. Ms. Wilson has provided great service to our nation and has fulfilled her obligation to protect classified information admirably. We are confident that she will uphold it again today.

Statement of Rep. Tom Davis Ranking Republican Committee on Oversight and Government Reform Hearing: White House Procedures for Safeguarding Classified Information March 16, 2007 I want to begin by commending Chairman Waxman on the passage of important reform legislation this week. The House adopted bipartisan bills crafted in this Committee to strengthen the Freedom of Information Act, disclose donors to presidential libraries, expand access to presidential records and fortify whistleblower protections. Given those accomplishments, it seems sadly ironic we end Sunshine Week - the annual observance of open government with a partisan hearing on how best to keep secrets. I have to confess, I'm not sure what we're trying to accomplish here given all the limitations the Chairman just described. Ostensibly called to examine White House procedures for handling and protecting classified information, this hearing's lead witness never worked at the White House. If Valerie Plame Wilson knows about security practices there, she certainly can't say much, if anything, about them in a public forum. But we do know she worked at the Central Intelligence Agency. That now well known fact raises some very different questions about how critical, but difficult, it is to protect the identity of individuals with covert status. But again, those are questions we probably can't say much about here without violating the very security safeguards the majority claims to be worried about at the White House. Under these circumstances, perhaps a hypothetical case is the best way to describe the futility of trying to enforce the Intelligence Identity Protection Act in this decidedly non-judicial venue. Let's say a member of the committee staff is told to identify a CIA witness for a hearing on security practices. He, or she, calls the Agency and asks to speak with Official A. Official A is not in, so the call is routed to Official B, who identifies him or herself by name and title, and answers the staffer's questions. Thinking Official B would be a fine witness, the staff member then calls the Congressional Research Service, or a friend at another committee, to find out more about Official B. But Official B happens to be a covert agent. Page 1 of 2

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Statement of Rep. Tom Davis March 16, 2007 Page 2 of 2 In passing the name, title and CIA affiliation around, has the staff member violated the law against disclosure? Probably not. You'd have to be looking through a pretty thick political prism to see an intentional unauthorized disclosure in that context. In the case of Mrs. Wilson, the majority stresses the fact that disclosure of her status triggered a "crimes report" by the CIA to the Justice Department. Allegations against White House officials and reporters were thoroughly vetted. But after spending six months and millions of dollars, the Special Counsel charged no one with a violation of the Intelligence Identities Protection Act. The lack of prosecutions under the Act shows those disclosures probably occurred in a similarly non-intentional context, lacking the requisite knowledge of covert status or the intention to disclose that status without authorization. No process can be adopted to protect classified information that no one knows is classified. Just as no one can be prosecuted for unauthorized disclosure of information that no one ever said was protected. So this looks much more like a CIA problem than a White House problem. If the Agency doesn't take sufficient precautions to protect the identity of those engaged in covert work, no one else can do it for them. The same law meant to protect secret identities also requires an annual report to Congress on the steps taken to protect that highly sensitive information. We're told few, if any, such reports exits. Who knows what information needs to be protected and how are they told? Is there a list officials can check against? Do CIA briefers know when material given to executive branch officials references a covert agent, and are they cautioned not to repeat the name? How is it made known, and to whom, when the five year protection period for a formerly covert agent has elapsed? Those are the questions that need to be asked about the safeguards on classified information. But we won't hear from the CIA today in this open forum. Given all that, I suspect we're going to waste considerable time today talking about all the things we can't talk about. It's unfortunate. Unfortunate an individual possibly still in a covert status was publicly identified. Unfortunate executive branch officials got anywhere near this media maelstrom rather than focus on more serious problems. And unfortunate this has become so politicized. On this side, we're not here to defend or attack anyone. In an open session, we hope to shed some sunshine on the workings of government. I have to say again, I'm not sure that's going to happen today, but I thank our witnesses for trying.

Prepared statement of Victoria Toensing ...

Chairman Waxman and Members of the Committee on Oversight and Government Reform, thank you for inviting me to speak this morning. I am informed that this hearing concerns "White House procedures for safeguarding classified information," and that Valerie Plame has been invited to testify. Special Counsel Patrick Fitzgerald has characterized Plame's employment status as "classified," but conducted a three-year criminal investigation under the auspices of the 1982 Intelligence Identities Protection Act, which criminalizes only the disclosure of a "covert" intelligence officer or agent. Therefore, I must assume that one specific goal of this hearing is to understand the difference between the two terms classified and covert and the importance of our intelligence community protecting the identities of covert agents under the 1982 law. In that regard I would like to discuss the Congressional intent and clear mandates and prohibitions of that Act, and how it played a role in the investigation and indictment of Lewis "Scooter" Libby. INTELLIGENCE IDENTITIES PROTECTION ACT In late 1981, when I became Chairman Barry Goldwater's chief counsel for the Senate Select Committee on Intelligence, my first assignment was to get the Intelligence Identities Protection Act passed. Chr. Goldwater was the ultimate manager, meaning that I was to come to him if there was a problem only he could resolve. Other than that situation, I was to negotiate whatever issues arose. Thus, I had hands-on everyday involvement with those for and against the bill. Although there had been hearings and drafts prior to my coming to the Intelligence Committee, there remained throughout my months of negotiations a major 1

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concern that had to be addressed. Opponents of the legislation considered the criminalization of publishing covert names to be unconstitutional. The media hired highly respected counsel, including the late Dick Schmidt, American Society of Newspapers Editors (ASNE), and Bruce Sanford, Baker & Hostetler, who represented a coalition of news organizations. They vigorously voiced the press' specific concern: specifically, that passing a bill that prohibits identifying an employee or agent of the CIA (or some other intelligence gathering agency) would have a "chilling effect" on criticizing the intelligence community. We were then in the wake of Watergate. The ability to criticize intelligence gathering and conduct of intelligence officers and agents was paramount to the media. I assume and hope it remains important. Those who supported the concept of the law wanted the statute to pass constitutional muster. If a prosecution violated the First Amendment, it was useless as a deterrent to those who had the specific intent to "out" truly secret officers and agents. In reaction to both the strong lobbying by the media and ACLU, and Congressional concern for the First Amendment, two basic categories of persons subject to prosecution were created: 1) journalists and 2) those having authorized access to classified information, the latter being government personnel with clearances. Congress wanted to make it nearly impossible to prosecute a journalist for criticizing the CIA because it wanted to "exclude the possibility that casual discussion, political debate, the journalistic pursuit of a story on intelligence, or the disclosure of illegality or impropriety in government will be chilled" by the law. S. Rep. 97-201, at 12. Therefore, any publication identifying a covert agent had to be done "in the course of a pattern of activities" with the specific intent to expose that agent, and "with reason to 2

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believe that such activities would impair or impede the foreign intelligence activities of the United States." Additionally, the journalist had to know the information so identified the covert agent and that "the United States was taking affirmative measures to conceal that individual's classified intelligence relationship to the United States...." Under this definition, Robert Novak's July 13, 2003, column does not come close to triggering the Act as to him. The second category is government employees. In addition to a government employee having authorized access to classified information and disclosing it to a person without clearances (like a journalist), the following factors must be present for a government employee to violate the Act: · The United States is taking affirmative measures to conceal a covert agent's intelligence relationship to the United States; · The person disclosing the identity knows that the government is taking affirmative measures to conceal the relationship; · The person disclosing the identity knows that the information so identifies the covert agent; · The covert agent whose identity was disclosed is an employee of an intelligence agency; · The covert agent whose identity was disclosed has a relationship with such agency that is classified; · At the time of the disclosure, the covert agent whose identity was disclosed was serving outside the United States or had done so within five years of the disclosure; and · The disclosure is intentional. In a prosecution, all these factors, which are called elements of the offense, must be proven beyond a reasonable doubt. Two of these factors were particularly important in drafting the law: 1) the definition of "covert agent," including the requirement of 3

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serving outside the country, and 2) the law's requirement that the government take "affirmative measures" to conceal the agent's intelligence relationship to the United States. Covert Agent Under the term "covert agent," two types of individuals are covered: an officer and an agent. A person working for the CIA is an "officer." A person who is an informant or source for the CIA is an "agent." The media often err in this distinction. To make the legislation simpler, the term "covert agent" was used by the drafters to refer to both officers and agents. The Senate Report, when relevant, distinguishes how the law applies to each. Although a "`covert agent' is specifically limited to an individual whose identity as an intelligence agency employee `is classified information,'" criminality does not turn on whether the information disclosed is classified. Id. at 15. There should only be prosecution "when the defendant has knowingly disclosed information that, in terms of its specificity, its sensitivity, and the effort expended to maintain its secrecy, is virtually the equivalent of classified information." Id. In other words, the definition of a covert agent is more than classified and less than classified. It clearly is not synonymous with classified. As the Committee stated, "The mere fact that an intelligence relationship appears in a document which is classified does not constitute evidence that the United States is taking affirmative measures to conceal the relationship." Id. at 19. Significantly, the Senate Report makes clear Congressional desire to limit application of the criminal law to disclosure of selected intelligence officers: [T]he Committee has carefully considered the definition of "covert agent" and has included only those identities which it has determined to be absolutely necessary to 4

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protect for reasons of imminent danger to life or significant interference with vital intelligence activities. Undercover officers and employees overseas may be in special danger when their identities are revealed.... (Emphasis added). Id. at 15. Notably, the legislation limited coverage of U.S. citizen informants or sources (agents) also to situations where they "reside and act outside the United States." Id. at 16. This foreign assignment requirement developed from the impetus for the legislation: attacks on CIA personnel serving abroad. Renegade former CIA officer, Philip Agee, exposed over 1000 CIA officers, which was followed by the December 1975 assassination of CIA Athens Station Chief, Richard S. Welch. In 1980, Louis Wolf, co- editor of the Covert Action Information Bulletin, publicly claimed 15 U.S. officials in Jamaica were CIA. He provided addresses and telephone numbers, information not considered "classified." Within a week two of those named were attacked. Id. at 8. Early drafts of the legislation covered only those individuals stationed abroad. During my participation in the negotiations, the CIA brought up the issue that it was not unusual for CIA officers to be rotated back to the United States. Such period of time was for about two to three years. So we agreed to extend coverage for three years after a covert person left a foreign assignment. Then the issue arose that the protection of the Act was not intended just for the CIA officers, but also for their sources. "How long," we asked, "would be a reasonable time to protect sources?" The CIA replied that five years would be sufficient. As a result of that round of negotiation, the criterion of the foreign assignment requirement for an employee to be a "covert agent" was drafted as follows: [A] present or retired officer or employee of an intelligence agency...who is serving outside the United States or has within the last five years outside the United States. 5

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§ 426 (4)(A). In other words, the compromise language of "within five years" is intended to prohibit disclosure of the intelligence officer for five years for the purpose of protecting former sources, not protecting the person assigned back to this country. There is a most recent example of a former covert officer bring named as such in the Washington Post. In John Kelly's March 1, 2007 column, he described Clare Lopez having lost a class ring in the mid-1980's while scuba diving off Mauritius. It was recovered recently by a German diver who returned it to her. Nice story. However, Kelly also described Lopez as "stationed at the U.S. Embassy in Mauritius" and as a "former CIA officer who is now a private consultant on issues related to the Middle East, terrorism and weapons of mass destruction." [App. A]. That story tells the public not only that Lopez was once covert but also that we have CIA presence in Mauritius. No one made a peep at such revelations. For Lopez, it is clear five years had passed. In his own words, in an autobiography titled, "Politics of Truth," Joseph Wilson, husband of Plame, reveals the timing of her return from foreign assignment as June 1997, some six years prior to Novak's July 2003 column: "In June of 1997, I arrived back in Washington to take my new job directing the African Affairs desk at the National Security Council. *** My move back to Washington coincided with the return to D.C. of a woman named Valerie Plame. I had first met her several months earlier at a reception in Washington...." pp.239-40 [App. B. pp1-2] 6

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Affirmative Measures There was great displeasure by certain Senators, especially Chr. Goldwater, that the CIA had been sloppy protecting its own. Indeed, one of the legislation's seven findings states: (7) The policies, arrangements and procedures used by the Executive branch to provide for U.S. intelligence officers, agents and sources must be strengthened and fully supported. S.Rep at 11. Such concern was the reason the Act required the government to be "taking affirmative measures to conceal such covert agent's intelligence relationship to the United States" before there could be a prosecution. Throughout the Senate Report, disappointment is expressed about the Executive branch's failure to provide adequate cover. As the Committee noted, "[P]art of the bill is designed to improve cover." "Without effective cover for U.S. intelligence officers abroad...the United States cannot collect the human intelligence" it needs. Id. at 10. (Emphasis added). In this regard, Section 423 of the Act requires the President, "after receiving information from the Director of Central Intelligence," to submit an annual report to both Intelligence Committees on "measures to protect the identities of covert agents, and on any other matter relevant to the protection of the identities of covert agents." Has the CIA done so? Given this concern and mandate, additional basic managerial questions of good intelligence tradecraft come immediately to mind. I am aware that this Committee does not have oversight of the intelligence community so others, perhaps, must ask these questions: 7

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· Could the CIA produce immediately a list of all foreign assigned personnel it has designated covert under the Act? · Does the CIA make any such list available to selected few individuals who need to check whether to confirm or deny that person's "intelligence relationship to the United States," as required by the Act? (Think CIA spokesman who often confirms or denies to reporters whether certain people work at the Agency.) · Has the CIA established guidelines for briefers of its Executive branch clients so they do not reveal names of "covert agents" without a caveat not to repeat the name or relationship? · Has the CIA devised a tracking plan so that five years after a formerly covert employee returns to the United States, he or she knows the Act no longer applies and, just as importantly, other persons have notice, e.g. a briefer? No White House can prudently safeguard classified or otherwise non-disclosable intelligence information (such as covert status) unless its own intelligence agency follows the proper procedures to inform it and its Executive branch clients of that classification or status. If Plame was really covert in July 2003 (or within five years of covert), the CIA was required under the statue to take "affirmative measures" to conceal her relationship to the United States, particularly because the criminal law comes into play. If Plame was really covered by the Act in July 2003, why did: · The CIA briefer who said he discussed the fact of Wilson's wife working at the CIA with Libby and the Vice-president, not tell them Plame's identity was covert or classified; · Richard Armitage, (who, having seen Plame's name in a State Department memo from which he gave the gossip to Robert Novak and later asserted, "I had never seen a covered agent's name in any memo...in 28 years of government") not know Plame's identity was not to be revealed; · State Department Undersecretary, Marc Grossman, not know Plame's identity was not to be revealed; 8

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· CIA spokesman Bill Harlow tell Vice-president staffer, Cathie Martin, that Wilson's wife worked at the Agency but not warn her Plame's identity was not to be revealed; · CIA spokesman Bill Harlow (who, according to Wilson's autobiography, had been "alerted" by Plame about Novak's sniffing around, p. 346 [App. B, p3] ) confirm for Novak that Plame worked at the CIA; · The CIA not send its top personnel, like the Director, to Novak and ask the identity of Plame not be published just as the government does any time it really, really, really does not want something public, e.g. in December 2005 when the New York Times was about to publish the top secret NSA surveillance program; · The CIA not ask Joe Wilson to sign a confidentiality agreement about his mission to Niger (a document all the rest of us have to sign when performing any task with the CIA) and then permit him to write an OpEd in the NYT about the trip, an act certain to bring press attention, when his Who's Who biography includes his wife's name; · The CIA allow Plame to attend in May 2003 a Democratic breakfast meeting where Wilson was talking to New York Times columnist Nicholas Kristoff about his trip to Niger; · The CIA allow Plame to contribute $1000 to Al Gore's campaign and list her CIA cover business, Brewster-Jennings & Associates, as her employer; · The CIA give Plame a job at its headquarters in Langley when it is mandated by statute "to conceal [a] covert agent's intelligence relationship to the United States"; · The CIA send to the Justice Department a boilerplate 11 questions criminal referral for a classified information violation when its lawyers had to know that merely being classified did not fulfill the required elements for exposing a "covert agent"? Such questions reveal slip-shod tradecraft, casting doubt on whether Plame's identity was even classified, much less covert. In fact, in a curious twist, while the CIA was turning a blind eye to Wilson writing about his mission to Niger (Did he go through the pre-publication review process like the rest of us have to do?), it was sending to the Vice-president's office documents about that 9

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same trip and these documents were marked classified. So the very subject Wilson could opine about in the New York Times was off-bounds for the Vice-president to discuss unless the person had a clearance. CRIMINAL INVESTIGATIONS UNDER THE ACT Criminal statutes are interpreted precisely. The rationale is that if a person is to be deprived of liberty, he or she should have sufficiently clear notice that specific conduct violates the law. For example, if the law protects a former covert officer for five years after leaving a foreign assignment, a person can be prosecuted for revealing the name within four years, eleven months and 30 days, but not five years and one day later. For public policy reasons, it is important for the CIA to take "affirmative measures" to protect the identity of a covert agent because it appears that even the accidental mention of a name or relationship is sufficient to trigger a full-scale years long criminal investigation. (Two other statutes, 18 USC § 793 and 18 USC § 798, criminalize disclosing classified information, but not the names of employees or agents else we would not have needed the 1982 law.) Although Libby suffered the most severely, numerous other persons were negatively affected. They had to hire lawyers. Several had to endure the angst of being threatened with indictment or jail. Judith Miller, New York Times reporter, did go to jail. If Plame was covert and the CIA had been fulfilling its obligations, all involved would have had sufficient notice from the CIA. If she was not covert, there should not have been a CIA referral for Novak's column because publishing a merely "classified" employee's name is not covered by the 1982 Act or the other two criminal statutes. 10

HENRY A. WAXMAN, CALIFORNIA TOM DAVIS, VIRGINIA
CHAIRMAN RANKING MINORITY MEMBER

ONE HUNDRED TENTH CONGRESS

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
2157 RAYBURN HOUSE OFFICE BUILDING
WASHINGTON, DC 20515_143

The Honorable Joshua Bolten
Assistant to the President and Chief of Staff
The White House
1600 Pennsylvania Ave. NW
Washington, DC 20500

Dear Mr. Bolten:

Today, the House Committee on Oversight and Government Reform held a hearing to
examine the disclosure by senior White House officials of the identity of covert CIA agent
Valerie Plame Wilson. The hearing raised many new questions about the how the White House
responded to an extraordinarily serious breach of national security. It also raised new concerns
about whether the security practices being followed by the White House are sufficient to protect
our nation's most sensitive secrets.

James Knodell, Director of the Office of Security at the White House, testified at the
hearing about White House procedures for safeguarding classified information. During his
testimony, Mr. Knodell made some remarkable statements about how his office handled the
disclosure of Ms. Wilson's covert status. Specifically, Mr. Knodell testified:

- The Office of Security for the White House never conducted any investigation of the
disclosure of Ms. Wilson's identity;

- Under the applicable executive order and regulations, your senior political advisor, Karl
Rove, and other senior White House officials were required to report what they mew
about the disclosure of Ms. Wilson's identity, but they did not make any such report to
the White House Office of Security; and

- There has been no suspension of security clearances or any other administrative sanction
for Mr. Rove and other White House officials involved in the disclosure.

According to Mr. Knodell, the explanation for the lack of action by the White House
Security Office was a White House decision not to conduct a security investigation while a
criminal investigation was pending. Mr. Knodell could not explain, however, why the White

-----------------------------------

The Honorable Joshua Bolten
March 16, 2007
Page 2

House did not initiate an investigation after the security breach. It took months before a criminal
investigation was initiated, yet according to Mr. Knodell, there was no White House
investigation initiated during this period.

Mr. Knodell also testified that it would be inappropriate to allow an individual who was a
security risk to retain his or her security clearance while a criminal investigation is pending. As
members of the Committee pointed out, a criminal investigation can last years, and it would
jeopardize national security not to investigate the officials implicated in the leak and suspend
their security clearances if there were reason to suspect their involvement. Mr. Knodell did not
dispute this point.

The testimony of Mr. Knodell appears to describe White House decisions that were
inconsistent with the directives of Executive Order 12958, which you si_ed in March 2003.
Under this executive order, the White House is required to "take appropriate and prompt
corrective action" whenever there is a release of classified information. Yet Mr. Knodell could
describe no such actions after the disclosure of Ms. Wilson's identity.

Taken as a whole, the testimony at today's hearing described breach after breach of
national security requirements at the White House. me first breach was the disclosure of Ms.
Wilson's identity. Other breaches included the failure of Mr. Rove and other officials to report
their discloses as required by law, the failure of the White House to initiate the prompt
investigation required by the executive order, and the failure of the White House to suspend the
security clearances of the implicated officials.

To assist the Committee in its investigation into these issues, I request that you provide
the Committee with a complete account of the steps that the White House took following the
disclosure of Ms. Wilson's identity (l) to investigate how the leak occurred; (2) to review the
security clearances of the White House officials implicated in the leak; (3) to impose
administrative or disciplinary sanctions on the officials involved in the leak; and (4) to review
and revise existing White House security procedures to prevent future breaches of national
security.

I look forward to your response and hope you will cooperate with the Committee's
inquiry.

Sincerely,

Henry A. Waxman
Chairman

cc: Tom Davis
Ranking Minority Member

posted by cboldt # 3/16/2007 09:47:00 AM

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