[House Report 108-413]
[From the U.S. Government Publishing Office]
108th Congress Rept. 108-413
HOUSE OF REPRESENTATIVES
2d Session Part 3
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REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF STATE, THE
SECRETARY OF DEFENSE, AND THE ATTORNEY GENERAL TO TRANSMIT TO THE HOUSE
OF REPRESENTATIVES NOT LATER THAN 14 DAYS AFTER THE DATE OF THE
ADOPTION OF THIS RESOLUTION DOCUMENTS IN THE POSSESSION OF THE
PRESIDENT AND THOSE OFFICIALS RELATING TO THE DISCLOSURE OF THE
IDENTITY AND EMPLOYMENT OF MS. VALERIE PLAME
_______
February 27, 2004.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
DISSENTING VIEWS
[To accompany H. Res. 499]
[Including Committee Cost Estimate]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 499) requesting the President and directing
the Secretary of State, the Secretary of Defense, and the
Attorney General to transmit to the House of Representatives
not later than 14 days after the date of the adoption of this
resolution documents in the possession of the President and
those officials relating to the disclosure of the identity and
employment of Ms. Valerie Plame, having considered the same,
report unfavorably thereon without amendment and recommend that
resolution not be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 6
Committee Consideration.......................................... 6
Vote of the Committee............................................ 6
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Committee Cost Estimate.......................................... 8
Performance Goals and Objectives................................. 8
Constitutional Authority Statement............................... 8
Section-by-Section Analysis and Discussion....................... 8
Changes in Existing Law Made by the Bill, as Reported............ 9
Markup Transcript................................................ 9
Dissenting Views................................................. 41
Purpose and Summary
House Resolution 499, introduced by Rep. Holt on January
21, 2004, requests the President, and directs the Secretary of
State, the Secretary of Defense, and the Attorney General to
transmit to the House of Representatives not later than 14 days
after the date of adoption of this resolution all physical and
electronic records and documents in his possession related to
the disclosure of the identity of Ms. Valerie Plame as an
employee of the Central Intelligence Agency during the period
May 6, 2003 through July 31, 2003.
Background and Need for the Legislation
House Resolution 499 is a resolution of inquiry. Clause 7
of Rule XIII of the Rules of the House of Representatives
provides that if the committee does not act on the resolution
within 14 legislative days, a privileged motion to discharge
the committee is in order on the floor. In calculating the days
available for Committee consideration, the day of introduction
and the day of discharge are not counted.\1\ On introduction,
H. Res. 499 was referred to the Permanent Select Committee on
Intelligence primarily, and to the Committees on Armed
Services, International Relations, and the Judiciary
secondarily. The Committee on Intelligence adversely reported
H. Res. 499 on February 3, 2004.\2\ On that day, Speaker
Hastert extended the time for the secondary committees to
consider H. Res. 499 to February 27, 2004.
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\1\ William Holmes Brown, House Practice: A Guide to the Rules,
Precedents and Procedures of the House 819 (2003).
\2\ H.R. Rep. No. 108-413, Part I (2004).
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Under the rules and precedents of the House, a resolution
of inquiry allows the House to request information from the
President of the United States or to direct the head of one of
the executive departments to provide such information.
According to Deschler's Precedents, it is a ``simple resolution
making a direct request or demand of the President or the head
of an executive department to furnish the House of
Representatives with specific factual information in the
possession of the executive branch.'' \3\
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\3\ 7 Deschler's Precedents of the House of Representatives, ch.
24, Sec. 8, p. 407.
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A committee has a number of choices after a resolution of
inquiry is referred to it. It may vote on the resolution
without amendment, or it may amend it. It may report the
resolution favorably, adversely, or with no recommendation. A
committee that adversely reports a resolution of inquiry does
not necessarily oppose the resolution under consideration. In
the past, resolutions of inquiry have been reported adversely
for various reasons. Two common reasons are that an
Administration is in substantial compliance with the request or
that there is an ongoing competing investigation.
Under the first scenario, the Executive Branch may deliver
documents that substantially comply with the resolution, thus
making it unnecessary for a committee to report the resolution
favorably for floor action. Second, a committee may decide to
report a resolution of inquiry adversely because it may compete
with another investigation that is regarded as the more
appropriate avenue for inquiry.
The committee is reporting this resolution adversely for
the second reason. H. Res. 499 would request and direct
Executive Branch officials to transmit to the House of
Representatives all documents on a matter that is subject to an
ongoing criminal investigation. To further complicate this
issue, the investigation involves classified information like
the work Ms. Plame may do for the Central Intelligence Agency.
The ongoing criminal investigation stems from a July 14,
2003 article by syndicated columnist Robert Novak, questioning
why retired diplomat Joseph Wilson would be sent to Niger on a
CIA mission.\4\ Mr. Novak wrote that ``Wilson never worked for
the CIA, but his wife, Valerie Plame, is an Agency operative on
weapons of mass destruction. Two senior administration
officials told [Novak] Wilson's wife suggested sending him to
Niger to investigate . . .'' \5\ In response to questions
raised by his article, Mr. Novak wrote an explanation on
October 1, 2003 that ``[t]his story began July 6 when Wilson
went public and identified himself as the retired diplomat who
had reported negatively to the CIA in 2002 on alleged Iraq
efforts to buy uranium yellowcake from Niger.'' \6\ He went on
to state that he ``was curious why a high-ranking official in
President Bill Clinton's National Security Council was given
this assignment.''\7\ Mr. Novak explained that ``[d]uring a
long conversation with a senior administration official, [he]
asked why Wilson was assigned the mission to Niger. [The Senior
Administration official] said Wilson had been sent by the CIA's
counterproliferation section at the suggestion of one of its
employees, [Wilson's] wife. It was an offhanded revelation from
this official, who is no partisan gunslinger. When [Novak]
called another official for confirmation, [that official] said:
`Oh, you know about it.' '' \8\
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\4\ Robert Novak, Editorial, Mission to Niger, Chicago Sun-Times,
July 14, 2003, at 31.
\5\ Id.
\6\ Robert Novak, Editorial, Columnist Wasn't Pawn for Leak,
Chicago Sun-Times, Oct. 1, 2003, at 49.
\7\ Id.
\8\ Id.
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In late September, the Department of Justice opened an
investigation as to whether officials who named Ms. Plame to
the press violated Federal law that prohibits identifying
covert agents.\9\ On October 3, 2003, the White House Counsel
sent a notice to all White House employees to turn in copies of
documents for the ongoing probe into who leaked the name of a
CIA operative.\10\ That same day, the press reported that the
investigation had moved beyond the White House and CIA to
include the State and Defense Departments.\11\ In late October,
the press reported that ``[t]he FBI has interviewed more than
three dozen Bush administration officials, including political
adviser Karl Rove and press secretary Scott McClellan, in its
investigation into the leak of an undercover CIA officer's
identity.'' \12\ The Associated Press reported that
``[b]oxloads of documents have been forwarded to the FBI team,
including White House phone logs and e-mails. More documents
are being produced, as the contents of individual items
sometimes lead agents to request additional materials, one
official said.'' \13\
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\9\ Justice Dept. Probes White House Leak Charge, FOXNews.com
(Sept. 29, 2003), available at http://www.foxnews.com/story/
0,2933,98522,00.html (last viewed Jan. 29, 2004).
\10\ White House staff put on notice, CNN.com/Inside Politics (Oct.
3, 2003), available at http://www.cnn.com/2003/ALLPOLITICS/10/03/
leak.main/ (last viewed Jan. 29, 2004).
\11\ Leak Probe Moves Beyond White House, CIA, FOXNews.com (Oct. 3,
2003), available at http://www.foxnews.com/story/0,2933,98930,00.html
(last viewed Jan. 29, 2004); Steve Turnham, Leak Probe widens to
include State, Defense departments CNN.com/Inside Politics (Oct. 23,
2003), available at http://www.cnn.com/2003/ALLPOLITICS/10/02/
leak.main/ (last viewed Jan. 29, 2004).
\12\ Curt Anderson, Rove, McClellan Interviewed in CIA Leak Probe,
Associated Press Newswires, Oct. 23, 2003.
\13\ Id.
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The Attorney General recused himself from the case in
December.\14\ Deputy Attorney General James Comey appointed
United States Attorney Patrick Fitzgerald to lead the
investigation.\15\ USA Today reported that Mr. Comey gave Mr.
Fitzgerald ``more independence than required under Justice
Department regulations. Fitzgerald will not have to seek
approval from Justice officials in Washington before issuing
subpoenas or granting immunity. U.S. attorneys must get
approval before taking such steps.''\16\
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\14\ Toni Locy, Attorney General recuses himself from CIA probe,
USATODAY.com (Dec. 30, 2003), available at http://www.usatoday.com/
news/washington/2003-12-30-cia-leak--x.htm (last visited Jan. 29,
2003).
\15\ Id.
\16\ Id.
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In late January, the press reported that a grand jury had
convened in Washington, D.C., to hear testimony on this
investigation.\17\ Further confirmation that a grand jury is
investigating is found in a February 10, 2004 Washington Post
article which says that a ``federal grand jury has questioned
one current and two former aides to President Bush, and
investigators have interviewed several others, in an effort to
discover who revealed the name of an undercover CIA officer to
a newspaper columnists, sources involved in the case said
yesterday.'' \18\ It notes further that: ``White House press
secretary Scott McClellan said yesterday that he talked to the
grand jury on Friday. Mary Matalin, former counselor to Vice
President Cheney, testified Jan. 23, the sources said. Adam
Levine, a former White House press official, also testified
Friday, the sources said.'' \19\
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\17\ John Dickerson & Viveca Novak, Grand Jury Hears Plame Case,
Time.com (Jan. 22, 2004), available at http://www.time.com/time/nation/
article/0,8599,581456,00.html (last visited Jan. 29, 2004).
\18\ Mike Allen & Susan Schmidt, Bush Aides Testify in Leak Probe,
Washington Post, (Feb. 10, 2004, p. A01).
\19\ Id.
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``The Federal grand jury enjoys sweeping authority'' \20\
that allows investigators to subpoena witnesses and request the
same documents requested in H. Res. 499, including telephone
and electronic mail records, logs and calendars, personnel
records, and records of internal discussions.
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\20\ Charles Doyle, Congressional Research Service Report for
Congress: Federal Grand Juries: the Law in a Nutshell 1 (Feb. 5, 2002).
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This Committee has previously reported a resolution of
inquiry adversely to avoid jeopardizing a grand jury
investigation. According to the Congressional Research Service:
In 1980, for example, H. Res. 571 directed the Attorney
General to furnish the House with ``all evidence
compiled by the Department of Justice and the Federal
Bureau of Investigation against Members of Congress in
connection with the Abscam investigation,'' which was a
Justice Department undercover operation that led to
charges of criminal conduct against certain Members of
Congress. The resolution also asked for ``the total
amount of Federal moneys expended in connection with
the Abscam probe.'' [126 Cong. Rec. 4071 (1980).]
The House Judiciary Committee reported the resolution
adversely. [H. Rept. No. 96-778, 96th Cong., 2d Sess.
(1980).] Committee opposition to the resolution was
unanimous. [126 Cong. Rec. 4073 (statement by Rep.
McClory).] The Justice Department ``vigorously
oppose[d]'' the resolution. [H. Rept. No. 96-778, at 2
(letter to Assistant Attorney General Philip B.
Heymann).] The objections raised by the department,
with which the committee agreed, centered on the
concern that disclosure of evidence to the House would
jeopardize the ability of the department to
successfully conduct grand jury investigations and to
prosecute any indictments, and that the release of
unsifted and unevaluated evidence ``would injure the
reputations of innocent people who may be involved in
no ethical or legal impropriety.'' [id.] \21\
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\21\ Louis Fisher, Congressional Research Service Report for
Congress: House Resolutions of Inquiry 14-15 (May 12, 2003).
This Committee has also adversely reported a resolution of
inquiry because of other types of competing investigations. For
instance, on July 17, 2003, this Committee adversely reported
H. Res. 287, a resolution of inquiry, due to an ongoing
competing investigation of the Inspector General of the
Department of Justice. That resolution of inquiry directed the
Attorney General to transmit all physical and electronic
records and documents in his possession related to any use of
Federal agency resources in any task or action involving or
relating to Members of the Texas Legislature in the period
beginning May 11, 2003, and ending May 16, 2003, except
information the disclosure of which would harm the national
security interests of the United States. The Committee's report
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stated:
According to a May 12, 2003, press release issued by
the Texas Department of Public Safety, the public was
asked for assistance in locating 53 Texas legislators
who had ``disappeared.'' According to the release,
under the Texas Constitution, the majority of members
present in session in the Texas State House can vote to
compel the presence of enough members to make a quorum.
Members of the House did so and directed the Sergeant-
at-Arms of the House and the Department of Public
Safety to locate the absent members and bring them back
to the State capital.
On May 27, 2003, Sen. Joseph Lieberman of Connecticut
sent a letter to the Office of the Inspector General of
the U.S. Department of Justice asking for ``a full
investigation into this matter.'' After receipt of the
letter from the Senator, in a statement to the press,
the Office of the Inspector General disclosed that on
June 4, 2003, it began investigating what, if any,
Department of Justice resources were expended in
connection with this matter. As of the filing of this
report, that investigation is still ongoing.
The Committee believes that an investigation by the
Inspector General of the Department of Justice is the
more appropriate avenue. . . .\22\
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\22\ H.R. Rep. No. 108-215 at 3 (2003).
With regard to H. Res. 499, the Committee believes that the
current grand jury investigation is the more appropriate avenue
for determining the facts of the case and any criminal
wrongdoing. The Judiciary Committee agrees with the Permanent
Select Committee on Intelligence that the investigation ``is
still ongoing and transmittal of evidence to the House would
likely jeopardize the ability of the Justice Department to
conduct its investigation.'' \23\ Because this resolution of
inquiry competes with that investigation, the resolution is
reported adversely.
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\23\ H.R. Rep. No. 108-413 Part I at 4 (2004).
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Hearings
No hearings were held in the Committee on the Judiciary on
H. Res. 499.
Committee Consideration
On February 25, 2004, the Committee met in open session and
adversely reported the resolution H. Res. 499 without amendment
by a rollcall vote of 17 yeas to 8 nays, a quorum being
present.
Vote of the Committee
In compliance with clause 3(b) of Rule XIII of the Rules of
the House of Representatives, the Committee sets forth the
following rollcall votes that occurred during the Committee's
consideration of H. Res. 499:
1. An amendment offered by Representative Jackson Lee would
have excluded the transmission of documents that would violate
the prohibition under Rule 6(e) of the Federal Rules of
Criminal Procedure against disclosing grand jury material. The
amendment was defeated by a rollcall vote of 8 yeas to 17 nays.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn.................................................. X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott.......................................................
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
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Total....................................................... 8 17
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2. Final Passage. The motion to report the resolution, H.
Res. 499, adversely was agreed to by a rollcall vote of 17 yeas
to 8 nays.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn..................................................
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott.......................................................
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 17 8
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Committee Oversight Findings
In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of Rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d)(2) of Rule XIII of the Rules
of the House of Representatives, the Committee estimates the
costs of implementing the resolution would be minimal. The
Congressional Budget Office did not provide a cost estimate for
the resolution.
Performance Goals and Objectives
H. Res. 499 does not authorize funding. Therefore, clause
3(c)(4) of Rule XIII of the Rules of the House of
Representatives is inapplicable.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds that the rule
does not apply because H. Res. 499 is not a bill or joint
resolution that may be enacted into law.
Section-by-Section Analysis and Discussion
THE RESOLUTION
Paragraph (1) of H. Res. 499 requests that the President
transmit to the House of Representatives not later than the
date that is 14 days after the date of the adoption of this
resolution, all documents, including telephone and electronic
mail records, logs and calendars, personnel records, and
records of internal discussions in the possession of the
President relating to the disclosure of the identity of Ms.
Valerie Plame as an employee of the Central Intelligence Agency
during the period beginning on May 6, 2003, and ending on July
31, 2003; and
Paragraph (2) of H. Res. 499 directs the Secretary of
State, the Secretary of Defense, and the Attorney General to
transmit to the House of Representatives not later than such
date, all documents, including telephone and electronic mail
records, logs and calendars, and records of internal
discussions in the possession of the Secretary of State, the
Secretary of Defense, and the Attorney General, respectively,
relating to such disclosure during such period.
Changes in Existing Law Made by the Resolution,
as Reported
In compliance with clause 3(e) of Rule XIII of the Rules of
the House of Representatives, the Committee notes that H. Res.
499 makes no changes to existing law.
Markup Transcript
BUSINESS MEETING
WEDNESDAY, FEBRUARY 25, 2004
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:08 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order. A
quorum is present.
Pursuant to notice, I now call up H. Res. 499, a resolution
requesting the President and directing the Secretary of State,
the Secretary of Defense, and the Attorney General to transmit
to the House of Representatives not later than 14 days after
the date of adoption of this resolution documents in the
possession of the President and those officials relating to the
disclosure of the identity and employment of Ms. Valerie Plame
for purposes of markup and move its adverse recommendation to
the House.
Without objection, the resolution will be considered as
read and open for amendment at any point. I would point out to
the membership that only paragraph two of the resolution is
within the jurisdiction of the Judiciary Committee.
[The resolution, H. Res. 499, follows:]
The chair now recognizes himself for 5 minutes to explain
the resolution.
Today, the Committee considers H.R. 499, a resolution of
inquiry relating to Ms. Valerie Plame. This resolution requests
officials in the executive branch to transmit to the House all
records in their possession relating to the disclosure of the
identity of Ms. Plame as an employee of the Central
Intelligence Agency during the period May 6, 2003, through July
31, 2003.
I move that the Committee report the resolution adversely.
I made the adverse motion because passing the resolution would
interfere with an ongoing criminal investigation. A competing
investigation is a common reason that Committees have adversely
reported resolutions of inquiry in the past. It is also the
reason that the House Intelligence Committee adversely reported
this resolution on February 4.
Likewise, this Committee has previously reported such
resolutions adversely for the same reason. On July 17, 2003,
this Committee adversely reported H. Res. 287 relating to the
Texas redistricting matter because of an ongoing investigation
being conducted by the Inspector General of the Department of
Justice. In the 1980s, the Committee reported a resolution
adversely to avoid jeopardizing a grand jury investigation into
the ABSCAM case, which as many Members may recall ended up
resulting in the conviction of certain Members of Congress of
crimes.
I recommend that Members of this Committee follow this
precedent and refrain from jeopardizing the ongoing criminal
investigation. Published reports and statements of the
Department of Justice indicate that there is an ongoing, active
investigation. Recent stories indicate that the investigation
is before a grand jury.
Having said that, let me briefly review the short history
of this investigation. On July 14, 2003, syndicated columnist
Robert Novak in an article questioning why retired diplomat
Joseph Wilson would be sent to Niger on a CIA mission wrote
that, quote, ``Wilson never worked for the CIA, but his wife,
Valerie Plame, is an agency operative on weapons of mass
destruction. Two senior Administration officials told Novak
Wilson's wife suggested sending him to Niger to investigate,''
unquote.
In late September, the Department of Justice opened an
investigation to determine whether the two unnamed officials
violated a Federal law that prohibits identifying covert
agents. On October 3, 2003, the White House counsel directed
all White House employees to turn in copies of documents for
the ongoing probe. That same day, the press reported that the
investigation had moved beyond the White House and CIA to
include the State and Defense Departments.
In late October, the press reported, quote, ``that the FBI
has interviewed more than three dozen Bush administration
officials, including political advisor Karl Rove and Press
Secretary Scott McClellan in its investigation into the leak of
an undercover CIA officer's identity,'' unquote. And the
Associated Press reported, quote, ``that boxloads of documents
have been forwarded to the FBI team, including White House
phone logs and e-mails. More documents are being produced,''
unquote.
In late December, the Attorney General recused himself from
participating in the investigation. Deputy Attorney General
Comey appointed United States Attorney Patrick Fitzgerald to
lead the investigation. USA Today reported that, ``Mr. Comey
gave Mr. Fitzgerald more independence than required under
Justice Department regulations. Fitzgerald will not have to
seek approval from Justice officials in Washington before
issuing subpoenas or granting immunity. U.S. Attorneys must get
approval before taking such steps,'' unquote.
In late January, the press reported that a grand jury had
convened in Washington, D.C., to hear testimony on this
investigation. On February 10, 2004, the Washington Post
reported that, ``the Federal grand jury has questioned one
current and two former aides to President Bush and
investigators have interviewed several others in an effort to
discover who revealed the name of an undercover CIA officer to
newspaper columnists, sources involved in the case said
yesterday,'' unquote. The article further confirmed that the
case has moved to a grand jury, stating that, ``White House
Press Secretary Scott McClellan said yesterday, February 9,
that he talked to the grand jury on Friday,'' unquote.
A Federal grand jury has broad authority that allows
investigators to subpoena witnesses and to request the same
documents requested in H. Res. 499, including telephone and
electronic mail records, logs and calendars, personnel records,
and records of internal discussion. This resolution competes
with that investigation. The investigation is, by all accounts,
proceeding quickly and the Committee has not received credible
allegations that Mr. Fitzgerald or the grand jury are in any
way derelict in their duties. The current grand jury
investigation is the more appropriate avenue for determining
the facts of the case and the existence of any criminal
wrongdoing.
The Permanent Select Committee on Intelligence came to the
same conclusion, finding that the investigation is still
ongoing and transmittal of evidence to the House would likely
jeopardize the ability of the Justice Department to conduct its
investigation.
I agree and urge the Members to support the motion to
report adversely.
Who wishes to give the Democrat opening statement? The
gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, we have
every evidence that a cover-up is going on, plain and simple.
Someone high up in the Bush administration deliberately
disclosed the identity of a CIA operative. If the President
really wanted to find out who it was, it would take him about 5
minutes to find out. Anyone who thinks otherwise doesn't know
how administrations work. The person would be fired
immediately, I would hope, justice could take its course, and
the issue would be resolved.
Revealing the identity of a covert agent is a serious
matter. It is, in fact, a crime. It endangers lives. It is
indefensible for this Committee to turn a blind eye. We need to
know who committed this crime and who endangered the national
security and who put lives at risk.
I don't know why any Member would oppose this resolution. I
don't know why any Member would not want to get the facts in
this case. I don't know why any Member would trust the Bush
administration to be honest about seeking the facts in this
case.
If we reject this resolution, we risk sending the message
that Members of Congress are complicit in working with the
Administration on a cover-up. I don't want to send that signal.
I can't imagine any Member of this Committee would want to send
that message, either. That is why we must support this
resolution and do our job to perform oversight of the
Department of Justice and that is a serious national concern.
We know from Robert Novak himself, who wrote the published
article, that, quote, ``two senior Administration officials,''
close quote, gave him the information. It appears that the Bush
administration is hiding the identity of these criminals in
their midst. We don't know why. We could only speculate. It may
be--the speculation of the press is this was a message to Mr.
Wilson, Ms. Plame's husband, and to other would-be
whistleblowers, don't say anything about--embarrassing about
the Bush administration. Mr. Wilson, of course, had talked
about the lack of evidence of weapons of mass destruction in
Iraq. He had to be punished and others warned, so his wife was
outed as a CIA operative.
It may be difficult to conceive of who would be willing to
perform such a serious criminal act, but if these people are
indeed senior officials, as Mr. Novak wrote, it is even more
important that they, who as senior officials presumably have
considerable power and influence, be brought to justice. During
the war on terror, we cannot afford to have criminals who
reveal our sources or put lives in jeopardy working at the
highest levels of power.
Now, it is the job of this Committee to oversee the
Department of Justice. We need to know what it is doing and we
need to find out if it is doing its job well or not. That is
why we are asking for these documents. We're not trying to
interfere with the investigation, though I certainly am dubious
that it is a thorough going and honest investigation, because I
said if they really wanted to know, they should have taken
about 5 minutes. But we are interested in knowing how it is
progressing.
Do we have the right to ask such questions, or is asking
such questions and passing this resolution somehow an
interference, as was suggested a few moments ago, with this
investigation? Well, just a few years ago, the Government
Reform Committee held hearing after hearing after hearing on
ongoing investigations and the Clinton administration handed
over 1.2 million pages of documents to the Committee. There
have been hearings on campaign finance, on Waco, on pardons, on
ENRON, and even on Martha Stewart, all while investigations in
the executive branch were progressing.
The Committees of this House did not think that their
hearings on those subjects interfered with ongoing
investigations, so I have little patience to hear anyone argue
that we don't have the authority or the responsibility at this
point to investigate whether or not and which two senior
Administration officials broke the law, jeopardized our
intelligence efforts during the current war on terror, and
jeopardized the lives of our agents.
Again, I urge my colleagues to support independence and
justice over party allegiance and to support this really very
mild resolution of inquiry.
I thank the chair and I yield to the distinguished Ranking
Member. Thank you.
Mr. Conyers. I want to thank the gentleman from New York
for making a response on our behalf. I'd like to just close his
opening statement by referencing the fact that there is no
validity to the claim that legitimate Congressional oversight
would interfere with the ongoing Justice Department
investigation of this matter. Now, let's all at least agree on
this.
The Congress has investigated any number of matters while
there were pending criminal investigations. If that were not
so, I wouldn't be here to name them off for you right now. In
fact, this Committee has done it over and over and over again.
The Waco hearings took place during a number of criminal
prosecutions. Then there were the Inslaw hearings. There was
the campaign finance investigation, where this Committee forced
the Department of Justice to turn over internal documents about
a number of pending investigations. When it came to the land
deals in Arkansas, the suicide of Vince Foster, or other
matters, this Congress has an appropriate authority for
investigation.
And so when it now comes to the disclosure of national
security secrets by high-ranking officials likely in the White
House, there is a sudden reluctance to move forward, and I
think that we ought to get over that. We may have different
positions on why we're going to do this, but we certainly don't
want to claim that we would be interfering with an ongoing
investigation, and I thank the Chairman for his patience.
Chairman Sensenbrenner. The gentleman's time is expired.
Without objection, all Members may place opening statements
into the record at this point.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
Chairman Sensenbrenner and Ranking Member Conyers, thank you for
your work and leadership in convening today's markup of H. Res. 499. In
light of the posture of Operation Iraqi Freedom, our nation's
occupation of Iraq, and the status of the interim government that will
be in place in that region, it is important that we parse through the
potential ethical and oversight issues that remain unresolved.
Before we can help Iraq establish a government that is based on
democratic principles, transparency, and accountability, we must
demonstrate that we ourselves adhere to these things. Although the
jurisdictional limitations of this Committee narrow the scope of our
purview to directing the Department of Justice to produce documents and
other information relative to this breach of national security, we must
not allow other departments and authority figures to escape from
accountability and the duty of giving honest and complete information
when it relates to the safety and welfare of our nation. It is very
likely that Federal laws have been broken, namely 50 U.S.C. Sec. 491
and 18 U.S.C. Sec. 793 (2002), which criminalize the exposure of
undercover operatives and the transmission of defense information.
There is long-standing precedent for our Committee to investigate
criminal and ethical matters both prior to and concurrently with a
Department of Justice investigation. In 1997, this Committee conducted
high profile hearings about campaign finance improprieties in the 1996
presidential election as the Attorney General contemplated appointing
an independent counsel. In 1995, the Judiciary Committee's Subcommittee
on Crime heard 12 days of testimony as part of a Congressional
investigation into Federal actions at the Branch Davidian Compound in
Waco, Texas. In 1992, the Full Committee and the Subcommittee on Crime
and Criminal Justice held hearings on whether high ranking officials in
the DOJ and the CIA knew of fraudulent loans to Iraq, and
misrepresented this information in Federal district court. Between 1989
and 1992, the Committee and the Subcommittee on Economic and Commercial
Law investigated claims that the DOJ ran a small computer company
INSLAW into insolvency in order to steal its software program. This
investigation ran concurrently with a special counsel appointed in 1989
by Attorney General William Barr.
The pace at which certain information was made available to the
public demonstrates that the investigation is not being conducted in a
thorough or unbiased manner. For example:
LOn September 30, the DOJ gave the White House eleven
hours notice before the investigation was officially started,
leaving ample time for the destruction of evidence.
(``Investigating Leaks,'' NYT, Oct. 2, 2003)
LThe Attorney General has documented ties to Karl
Rove, a primary target of the investigation, that render him an
inappropriate person to ultimately oversee the outcome of this
inquiry. Mr. Rove worked on three of John Ashcroft's campaigns
in the late 1980's and early 1990's, collecting $746,000 in
fees. (Duffy, ``Leaking With a Vengeance,'' Time, Oct. 5, 2003)
LDespite the Attorney General's conflicts, he is still
involved with the investigation on an intimate level. On
October 21, 2003 Christopher Wray, Associate Deputy Attorney
General testified before the Senate Judiciary Committee that he
regularly informs the Attorney General about the investigation.
He divulges the names of those interviewed, and enough detail
``for him to understand meaningfully what's going on in the
investigation.'' (Lichtblau, NYT, Oct. 22, 2003)
LThe DOJ investigation is replete with conflicts of
interests. Associate Attorney General Robert McCallum, who is
overseeing the Investigations Division's progress, is an old
friend of President Bush's. They were classmates at Yale and
members of the secretive Skull and Bones Society together.
(Schmitt and Chen, ``Leak Inquiry Embarks on a Long Road,''
L.A. Times, Oct. 2, 2003)
LFBI officials have acknowledged that they will be
going a ``bit slower on this one because it is so high-profile.
This will get scrutinized at our headquarter and at Justice in
a way that lesser, routine investigations wouldn't.''
(Stevenson and Lichtblau, ``Attorney General Is Closely Linked
to Inquiry Figures,'' NYT Oct. 2, 2003)
LThe White House publicly ruled out Karl Rove, vice
presidential chief of staff Lewis Libby, and National Security
Council senior director Elliott Abrams as possible sources for
the news leak. We have no way of knowing how the White House
reached these conclusions. To the extent the investigation
conflicts with these comments, the White House will be in the
awkward predicament of publicly contradicting their superiors.
(Mikkelsen, ``White House Says Three Senior Aids Innocent In
Leak,'' Reuters, Oct. 7, 2003)
LOn October 7, the White House announced that it will
be screening documents for ``relevance'' before handing them
over to the DOJ, to which the DOJ has yet to object. This could
result in the White House filtering out important information
that could shed light on the source of the leak. (Stevenson and
Lichtblau, ``Leaker May Remain Elusive, Bush Suggests,'' NYT,
Oct. 8, 2003)
LCareer professionals have expressed concern that the
investigation has run amok. Senior criminal prosecutors and FBI
officials ``fear Mr. Ashcroft could be damaged by continuing
accusations that as an attorney general with a long career in
Republican partisan politics, he could not credibly lead a
criminal investigation that centered on the aides to a
Republican president.'' (Johnston and Lichtblau, ``Senior
Federal Prosecutors and FBI Officials Fault Ashcroft Over Leak
Inquiry,'' NYT, Oct. 16, 2003) A former State Department Deputy
Chief of Counterterrorism has asked Congress to investigate the
leak, commenting that ``there's a lot they can do without
undermining the criminal investigation.'' (Lichtblau, NYT, Oct.
22, 2003)
LThe White House still has not taken affirmative steps
to trace the leak. Just this week, the President stated in a
press conference that he had no plans to ask his staff to sign
affidavits denying their involvement. (Johnston and Lichtblau,
NYT, Oct. 29, 2003)
Not only is the question of criminal culpability critical in this
matter, but the issue of what role the White House had in subsequent
efforts to tarnish Ambassador Wilson and his wife has tremendous
relevance. A Republican congressional staffer admitted that the
Administration's political strategy for dealing with Wilson and his
wife was to ``slime and defend.'' (Stevenson and Lichtblau, ``White
House Looks to Manage Fallout Over C.I.A. Leak Inquiry,'' Oct. 2, 2003)
It has also been reported that after the leak was initial disseminated,
Karl Rove told Chris Mathews that Mr. Wilson's wife and her under cover
status were ``fair game.'' (Thomas and Isikoff, ``Secrets and Leaks,''
Newsweek, Oct. 13, 2003) White House sources responded by asserting
that Rove had merely told the press ``it was reasonable to discuss who
sent Wilson to Niger.'' (Id.) In either event, it appears as though the
power of the White House may have been used to harm U.S. citizens.
I will be offering an amendment to H. Res. 499. The first relates
to the need to include within the scope of the materials and
information required under the resolution any and all communications
with journalists in connection with the disclosure of the identity of
Ms. Plame. This amendment will be vital to ensuring the complete and
timely production of relevant information that we request from the
President, Secretary of State, Secretary of Defense, and the Attorney
General. Furthermore, calling for testimony of these journalists will
trigger accountability for any illegal actions by the aforementioned
government officials.
Given the national security implications of these matters and the
challenges to White House integrity that are attendant, it is also
imperative that the key officials involved with and responsible for
this situation come forward before the committee, present their
documentation, telephone and other logs to us, and testify under oath
regarding their involvement in this matter.
[The prepared statement of Mr. Wexler follows:]
Prepared Statement of the Honorable Robert Wexler, a Representative in
Congress From the State of Florida
The outing of Ms. Valarie Plame's identity as a Central
Intelligence Agency (CIA) operative has cast the darkest of clouds over
the Bush Administration. Especially when the federal government is
calling on qualified Americans--and friends in other nations--to fight
our war on terrorism by serving in dangerous intelligence-gathering
positions, it is incredulous that this White House would put an
American's life in danger for its own political standing.
Ms. Plame's husband, Mr. Joseph C. Wilson IV, is a career American
diplomat and former ambassador who traveled to Niger in 2002 at the
request of the CIA. Ambassador Wilson was instructed to determine the
veracity of a British report claiming that Iraq had tried to buy
uranium ore for its alleged nuclear weapons program. President Bush
used the claim in his 2003 State of the Union speech as a key reason
for the United States to go to war to stop Saddam Hussein from
developing and using weapons of mass destruction.
Ambassador Wilson found no such evidence and later discredited the
claim in a New York Times opinion article. Subsequently, conservative
columnist Bob Novak revealed in a critical opinion article that
Ambassador Wilson's wife, Valarie Plame, has been a covert CIA
operative using senior officials of the Bush Administration as sources.
It appears that certain individuals of this White House wanted to
protect President Bush's public image by stifling his policy
detractors. These political spin-meisters clearly used their positions
of influence to intimidate the intelligence community just to protect
President Bush's shoddy arguments for starting a preemptive, unilateral
war.
This flagrant disregard for the lives of Ms. Plame and her contacts
is not only a shameful abuse of power but a violation of federal law.
In addition, the lives of all undercover agents are now placed in
jeopardy because the nefarious individuals who outed Ms. Plame still
lurk within the inner sanctum of the West Wing.
If these brave CIA operatives--whose unknown and unsung service is
so crucial to the safety of our nation--are to effectively and
objectively gather and analyze intelligence, they must not fear
political pressure to abridge their conclusions. It is crucial that we
waste no time in rooting out the betrayers in the Administration.
Chairman Sensenbrenner. Are there amendments?
Ms. Jackson Lee. I have an amendment at the desk, Mr.
Chairman.
Chairman Sensenbrenner. The Clerk will report the
amendment.
Ms. Jackson Lee. This is the amendment--I'm sorry. This is
the amendment dealing with the grand jury exception. It's
JCAM2, please.
The Clerk. Amendment to H. Res. 499 offered by Ms. Jackson
Lee. Page 2, line 20, insert before the period at the end the
following: ``, except that, in the case of such documents in
the possession of the Attorney General----''
[The amendment follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and the gentlewoman from Texas is recognized
for 5 minutes.
Ms. Jackson Lee. I thank the Chairman very much.
My reading of the Constitution clearly establishes three
distinct branches of Government. I believe the American people
have comfort in their republic and their democracy because of
the fact that the elected body, Members of the House of
Representatives and Members of the United States Senate, have
the responsibility of oversight, cautious but yet productive
with an investigative arm to ensure that this Government works.
This is a very simple case, Mr. Chairman. It is a case that
this Committee should not abdicate its responsibility nor any
other Member of the United States Congress. It saddens me, the
Committees already that have had the opportunity to review this
particular amendment, H. Res. 499, have decided in some
instances not to pass it out with the opportunity for it to go
to the floor of the House. It is a clear case of an abuse of
Government.
It is interesting, as my colleagues have already noted,
that any manner of infraction that might have been perceived by
past administrations were quick to be reviewed by this
Congress, even to the extent of a President's sexual
activities, personal and not governmental, were brought as an
impeachment proceeding. But yet when we seek to find the truth
that bears upon the potential, if you will, loss of life of an
undercover CIA agent, also impacting on how we treat other CIA
agents, we cannot find not one Committee that is willing to do
its duty.
This particular amendment is very simple. It responds to
the concerns of the opponents of this particular resolution to
suggest that any documents necessary for the grand jury or
presently before the grand jury would be accepted from
presenting them to the United States Congress and to this
Committee.
It is important to note that there is an investigation done
by the executive, the executive investigating the executive.
Mr. Chairman, that is not satisfactory. First of all, this is a
deadly representation. The suggestion that people in the White
House provided information to uncover a covert operative is
deadly. It is deadly for our intelligence. It is deadly for the
operatives we have around the country and the nation, and we do
not know the damage at this point.
In addition, it has come to our attention that many who are
investigating this particular activity are either related in
some way to the Administration and the President by being a
relative, by being a classmate, but there is clearly conflict
of interest.
I cannot imagine that this Congress would abdicate its
responsibility for a simple task. That simple task is to get to
the bottom of the statement by Robert Novak where he uncovered
in his public column the idea that there was a covert agent
married to Ambassador Wilson. Was it because of the fact that
Ambassador Wilson came forward and told us the truth about
weapons of mass destruction? Was it because he was trying to
apprise the American people and save lives from a lack of--from
a campaign in Iraq that had no thought and no basis in
conscience or in morality or in truth?
And so I'd simply ask my colleagues to consider the fact
that we can make this resolution better. We can join in a
bipartisan manner by accepting any materials that are already
submitted to the grand jury and ensuring that there are two
bilateral, if you will, investigations, that of the United
States Congress doing our duty, and that of the Administration
or the executive.
I cannot believe that a Congress that has had a long list
of investigations controlled by the Republican majority, from
campaign finance reform to Watergate to all kinds of ``gates,''
would not be willing to address the question that now has
jeopardized the lives of one CIA agent, but it may be many. The
truth must be found. This particular Committee that houses in
its bosom, if you will, the Constitution has a responsibility
to do so.
I'd ask my colleagues to support this amendment, which is a
grand jury exception. I yield back.
Chairman Sensenbrenner. The chair recognizes himself for 5
minutes in opposition to the amendment.
The gentlewoman from Texas proposes to accept any material
that goes before the grand jury from the scope of the documents
that have to be handed over, and I just remind Members that a
grand jury has broad authority that allows investigators to
subpoena witnesses and request the same documents that were
requested in this resolution. That includes phone records, e-
mail records, logs and calendars, personnel records, and
records of internal discussion.
Now, if the amendment of the gentlewoman from Texas is
adopted, there really isn't much that the Justice Department
can turn over because those are the types of materials that the
grand jury needs in order to investigate whether a violation of
criminal law has occurred.
Now, having said that, if the gentlewoman from Texas wants
to make sure that whomever violated Federal law, if Federal law
has been violated in disclosing Ms. Plame's identity and places
of employment, gets prosecuted and goes to jail, then I think
that she really wouldn't want to support the amendment,
wouldn't want to support the resolution, because it's not the
job of Congress to send criminals to jail. It is the job of the
executive branch under the Constitution to do the
investigating, to enforce the law, to seek indictments, and to
try cases in court.
So I think this amendment, I think kind of blows the cover
of what's going on here. The author of this amendment appears
to want to make a political statement. She does not want to
have the grand jury be able to zero in on whether a violation
of the law occurred, and if so, return an indictment so that
the defendant can be brought before a jury of his or her peers
and tried and, if convicted, sentenced.
Now, I'm a little bit concerned whenever I hear that we
shouldn't have the executive investigate the executive. That to
me sounds like a call for reinstitution of the independent
counsel law and we don't need to have any more Kenneth Starrs
running around investigating, whether it is a Republican
administration or a Democrat administration.
I am convinced that the decision of the Attorney General to
recuse himself and to turn this matter over to Patrick
Fitzgerald, who is the United States Attorney in Chicago, was a
correct decision. Mr. Fitzgerald is a man of unimpeachable
integrity. Mr. Fitzgerald, as you may recall, also returned an
indictment against a former Republican Governor of Illinois,
George Ryan, and everybody I have talked to has been impressed
with the fact that he does not let politics interfere with the
investigations that he is in charge of. And I've heard no
allegation that politics has interfered with this
investigation. The man is doing his job. He ought to be allowed
to do his job, and he ought not to have Congress interfere with
his ability to do his job.
Now, finally, I've been around here long enough to remember
what happened during the Iran-Contra affair. Congress stuck its
big nose into an investigation that was going on. It granted
certain types of immunity to Admiral John Poindexter and
Lieutenant Colonel Oliver North. They were convicted in court
of crimes relating to Iran-Contra. Their convictions were
reversed on appeal because the appeals court determined that
the prosecution used immunized testimony in the course of the
trial. The independent counsel that was looking into this
matter decided that there was not enough unimmunized testimony
left to retry the case, so these people who were convicted
based upon immunized testimony ended up not facing the legal
music.
So when Congress decides to engage in a political sideshow
rather than allowing a criminal prosecution and investigation
to go forth to its conclusion, there is a possibility and
perhaps even a probability that a guilty person can go free,
and I don't think we should go down that road again. We got
burned in Iran-Contra and we should not get burned a second
time, and I yield back the balance of my time.
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. I thank the chair and I appreciate his
impassioned remarks. I'm bound to say, there are parts of it
that I agree with. I didn't remember him being such an opponent
of Kenneth Starr when he was before us, but----
Chairman Sensenbrenner. Would the gentleman yield on that?
Mr. Conyers. Well, of course.
Chairman Sensenbrenner. I've opposed the independent
counsel statute when it's come before the Committee and allowed
it to--voted to allow it to expire in 1992, and you may recall
that I didn't bring up a reauthorization of the independent
counsel statute because it was a bad law and should be allowed
to rest in peace.
Mr. Conyers. Well, I thank you for that edifying comment.
Let us consider the fact, though, that there are independent
prosecutors, special prosecutors, and then there are
prosecutors named Kenneth Starr and there is a difference. All
prosecutors don't operate like Kenneth Starr operated. But I
leave that part of our discussion aside.
I turn now to commend the gentlelady from Texas. She is
absolutely right. If only the authors of this resolution had
consulted her before it was offered, I feel strongly that we
would have had nothing in here referring to grand jury
information. And so I rise to totally support the amendment
that is being offered by the gentlelady from Texas. It perfects
the modest request that is before us.
Now, may I remind the Members of this Committee, this is a
voluntary request. This is not a subpoena. It's going to three
groups. I'm hopeful that if it is reported favorably, that the
agencies and departments that would be involved in responding
would honor it. But we're asking them to voluntarily turn over
their information. What we do not want is what is the grand
jury doing about this. That's none of our business and that's
what makes this amendment so important.
So let's all agree here that what we have now is, again
quoting the gentlelady from Texas, we have the executive branch
investigating the executive branch. Now, this makes little
sense to people over the age of 18. I mean, this is not the way
we do business in America, is to have a White House problem
that is now going to be resolved by the Department of Justice--
perish the thought--which is now going to help us find out what
happened and how Novak reported this to the world, in effect,
that they were outing someone that was working undercover. This
is not just a desk job CIA person. This was undercover. This is
a heinous offense.
Ms. Jackson Lee. Absolutely.
Mr. Conyers. I cannot underestimate the seriousness of this
kind of activity. It has to be stopped wherever it is. But for
it to have occurred possibly in the White House is
unacceptable. It's intolerable. It offends the very
sensibilities that make us a democratic nation.
And so all we're asking for are some phone logs, some other
information. We want to know nothing about what the grand jury
is doing, and that is perfectly--this resolution then is
perfectly squarely fitted within the responsibilities of this
Committee.
Ms. Jackson Lee. Would the gentleman yield?
Mr. Conyers. Yes, ma'am.
Ms. Jackson Lee. You are so right, Mr. Conyers, first of
all, because the language says that anything that would violate
the secrecy and integrity of the grand jury proceedings would
not be requested by this House and this body.
I'm reminded of the leadership of Chairman Rodino, of which
you served on that Committee when, tragically, we engaged in
the impeachment of Richard Nixon. It's interesting that it was
a bipartisan process. Unfortunately, the last impeachment was
not. I cannot imagine that this Committee would abdicate its
responsibility for truth for the American people by considering
this a political sideshow. It is not.
Chairman Sensenbrenner. The time of the gentleman from----
Ms. Jackson Lee. It is an attempt to find the truth. I
thank you, Mr. Chairman.
Chairman Sensenbrenner.--Michigan has expired.
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Delahunt.
Mr. Delahunt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Delahunt. Let me also note that I agree with the chair
in part. I concur in terms of his observations relative to the
independent counsel statute. We certainly do not need Ken Starr
reappearing, or any resemblance thereof, in front of this
Congress. I think we've learned a lesson.
But I think we're missing the point here. I think there's
substantial precedent that parallel investigations or parallel
inquiries, whether it be a criminal investigation being
conducted by the executive branch or an oversight inquiry being
conducted by the legislative branch, are not mutually
exclusive. Mr. Nadler in his opening remarks enumerated
numerous cases where--that this Congress in the past 10 years
have addressed while simultaneously criminal investigations
were ongoing.
I think the key issue here is under the current policy,
with the existing statutes, do we provide the protection
necessary in terms of American policy for our CIA operatives?
As I read the newspaper accounts, they vary in terms of what
the elements of the statute currently are. They vary in the
interpretation of those statutes as to what is required to
secure an indictment and to secure a conviction for the
disclosure of the identity of a covert operative.
What we have here currently, and again, one only has to
review reports coming out in all of the major media outlets,
that we have a CIA that is demoralized, we have CIA operatives
that are outraged, that express concern, not just for their
colleague in this case but for their colleagues elsewhere who
are involved in developing intelligence for the protection of
the American people.
Now, the chair made a statement early on that we are
interfering with a criminal investigation. Let me pose the
question, and maybe he or some other Member has heard from the
Department of Justice or from Mr. Fitzgerald that an effort by
this Committee and this Congress to review the existing policy
would somehow interfere with the criminal investigation.
I have heard no basis to lead me to a conclusion that in
any way, shape, or form what we would do in our role,
exercising our responsibility, would interfere with the ongoing
process in terms of the investigation being conducted and
supervised by Mr. Fitzgerald. And if the chair or any other
Member has heard from anyone in the executive branch, whether
it be from Mr. Fitzgerald or from the Department of Justice or
from the White House or from anyone, I would like to hear it
now.
I think we have an obligation to those operatives who are
conducting intelligence efforts all over this globe that the
current policy and that the statutes will protect them rather
than expose them and their families to physical jeopardy.
You know, the chair earlier raised the issue, and it was, I
think, very well stated, regarding Iran-Contra. We are miles
away from granting anyone immunity here. This is not that case.
This is clearly distinguishable.
And in terms of the criminal investigation, I have no
reason to dispute the chair's observation about Mr. Fitzgerald.
Recently, there was a press report dated--I have it here in
front of me--dated February 4 by United Press and let me quote.
``Federal law enforcement officials said that they have
developed hard evidence of possible criminal misconduct by two
employees of Vice President Dick Cheney's office related to the
unlawful exposure of a CIA officer's identity last year.''
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Mr. Chairman, I yield 1 minute to the
gentleman.
Chairman Sensenbrenner. The gentleman strikes the last
word, is recognized for 5 minutes.
Mr. Nadler. And yields 1 minute to the gentleman from
Massachusetts.
Mr. Delahunt. I thank the gentleman for yielding. Just let
me continue to read this report by UPI that was published on
February 4 regarding the efforts by Mr. Fitzgerald, because
again, I do concur with the statement by the chair that Mr.
Fitzgerald appears to be doing his assignment and doing it
well.
The report goes on, ``The investigation, which is
continuing, could lead to indictments, a Justice Department
official said. According to these sources, John Hannah and
Cheney's Chief of Staff Lewis 'Scooter' Libby, were the two
Cheney employees. We believe that Hannah was the major player
in this one, one Federal law enforcement officer said. The
strategy of the FBI is to make clear to Hannah,'' and again,
let me stress that I'm quoting from this source, ``that he
faces a real possibility of doing jail time as a way to
pressure him to name superiors, one Federal law enforcement
official said.''
And that is the end of the quote that I had initially
presented, and I yield back and I thank the gentleman for
yielding.
Mr. Nadler. Thank you. Reclaiming my time, Mr. Chairman, we
have to--it may be that Mr. Fitzgerald is doing an excellent
job, and I have no reason to doubt that. I do have reason to
doubt, substantial reason to doubt, as should we all, that the
Administration is being honest in this respect.
It was reported in The Washington Post on February 10 in an
article entitled, ``Bush Aides Testify in Leak Probe'' by Mike
Allen and Susan Schmidt, said that White House staff are being
interviewed by investigators although many are refusing to sign
a waiver of their journalistic privilege which would allow the
press to disclose who among the Administration claims
undercover status.
The President ought to order everyone in the Administration
to waive their journalistic privilege. We would then know in 5
minutes who informed Mr. Novak because he would have no
privilege. The privilege attaches to people in the White House
or the Administration to quote the senior Administration
officials who gave the information, who committed the criminal
act by giving the name of an undercover CIA agent.
Now, if there are people in the White House who are
refusing to sign a waiver of their journalistic privilege, this
is not a question of the Fifth Amendment. It is the question of
a waiver of a journalistic privilege designed to protect the
press here, or designed to allow the press to get sources. The
Administration, not the press, ought to order Administration
members to sign that waiver so we can get to the bottom of
this, and the failure of the Administration to do so tells me
that the Administration is not in good faith on this subject
and, therefore, is not in good faith with the American people
who depend on our intelligence to protect us and whose safety
is compromised when undercover CIA agents, especially in this
case, an undercover agent working in the area of anti-nuclear
proliferation, is exposed.
And people in the White House ought to be doing everything
they can to find out who exposed her so that that can be
stopped in the future, and instead, they are refusing to sign a
waiver of their journalistic privilege. The President ought to
order them to sign that waiver, and this Committee, frankly,
ought to urge them, or to urge the Administration to urge its
members to require its members to sign a waiver so we can get
to the bottom of this immediately.
Thank you. I yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentlewoman from Texas, Ms. Jackson Lee----
Ms. Sanchez. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California is
recognized for 5 minutes.
Ms. Sanchez. Thank you, and I'd like to yield to my
colleague from Michigan, Mr. Conyers.
Mr. Conyers. I thank you very much to the gentlelady.
The gentleman from Massachusetts, Mr. Delahunt, referred to
the fine qualities of Patrick Fitzgerald, who's a very fine
prosecutor. We should stipulate to that, everybody on the
Committee.
The problem, however, is that each week that we get closer
to this election, the more pressure is put on this fine U.S.
Attorney not to report back any indictment, right? Or is
somehow he living in some kind of a glass bubble that makes him
not feel any pressure whatever as he moves very courageously in
his duties?
Now, my friends, what we will ultimately be talking about
is whether there should be a special counsel appointed, which
speaks to the problems that the Chairman and I agreed existed
in the old special prosecutor law that we both allowed to
expire. And what we need is someone with no ties to the
Department or loyalty to the Administration. The public can
have little faith that the investigation will be pursued
diligently and impartially under the circumstances that it's
now set up to do.
A U.S. Attorney appointed by the Department of Justice and
the Administration's White House is now investigating the White
House. Fine. I don't think it'll wash.
If it turns out that the White House engaged in an
organized smear campaign against former Ambassador Joseph
Wilson, including outing his wife, to exact revenge for
pointing out the lies in the pre-war Iraq intelligence--I say
if--then this would do incalculable harm to the President's
credibility and the case for his reelection. That's why I'm not
surprised that White House officials recently admitted that
their goal was to, quote, ``let the earth movers roll in on
this one,'' end quotations, and that on the heels of Mr.
Ashcroft's announcement, Republican legal sources acknowledged
that the recusal of the Attorney General will have the effect
of providing political cover for the Administration if no
indictment is issued.
Moreover, the recent assignment of Patrick Fitzgerald
contains none of the safeguards against politicalization that
comes with the formal appointment of a special counsel. He
doesn't have the ability to seek whatever financial resources
are needed to pursue the case, as a special counsel would be
able to. Mr. Fitzgerald does not have the guarantee that he can
be fired only for misconduct, dereliction of duty, incapacity,
or other good cause, as in the case with a special counsel. And
there is no requirement that the Attorney General provide the
public with a written explanation of why any action proposed by
the prosecutor was not taken, as is specified again in our
regulations concerning special counsel.
And so on this important amendment, I urge our colleagues
on both sides of the aisle to realize that it is a perfecting
amendment. It takes us out of the grand jury dilemma and
enables us to proceed with our investigation without any
encumbrance whatever. Thank you, Mr. Chairman.
Chairman Sensenbrenner. Does the gentlewoman from
California yield back?
Ms. Sanchez. I yield back the balance of my time.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentlewoman from Texas, Ms. Jackson
Lee. Those in favor will say aye.
Opposed, no.
The noes appear to have it----
Mr. Conyers. A record vote----
Chairman Sensenbrenner. rollcall will be ordered. Those in
favor of the Jackson Lee amendment will, as your names are
called, answer aye, those opposed no, and the Clerk will call
the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
[No response.]
The Clerk. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
[No response.]
The Clerk. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Carter?
Mr. Carter. No.
The Clerk. Mr. Carter, no. Mr. Feeney?
[No response.]
The Clerk. Mrs. Blackburn?
Mrs. Blackburn. No.
The Clerk. Mrs. Blackburn, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
[No response.]
The Clerk. Mr. Watt?
[No response.]
The Clerk. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Pass.
The Clerk. Mr. Schiff, pass. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there Members in the chamber
who wish to cast or change their votes? The gentleman from
North Carolina, Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
Green?
Mr. Green. No.
The Clerk. Mr. Green, no.
Chairman Sensenbrenner. The gentleman from Alabama, Mr.
Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? The gentleman from California, Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 8 ayes and 17 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
Ms. Jackson Lee. Mr. Chairman, I have two amendments that
I'd like to take en bloc. The first amendment is JCAM1----
Chairman Sensenbrenner. The clerk will report the
amendments.
Ms. Jackson Lee.--and the second one is 105 XML, Jackson
Lee.
The Clerk. Amendments to H. Res. 499 offered by Ms. Jackson
Lee en bloc. Page two----
The amendments follow:]
Chairman Sensenbrenner. Without objection, the amendments
will be considered en bloc. Without objection, the amendments
en bloc will be considered as read and the gentlewoman from
Texas is recognized for 5 minutes.
Ms. Jackson Lee. I thank the Chairman very much. Mr.
Chairman, I want to thank the Committee Members very much for
their indulgence.
I think a simple premise should be put before this
Committee and before the American people and this House, and
that is as we sit here, firm in our safety, young men and women
are on the front lines in Iraq losing their lives. The
representation to the American people was simply that this
nation was under imminent threat and that the Iraqi government
possessed weapons of mass destruction.
When Ambassador Wilson provided the truth to a
representation made by this Administration later that there was
no connection between the nation of Niger and the selling of
uranium, that, Mr. Chairman, was a direct, if you will,
challenge to the representation and the basis upon sending
young men and women into harm's way.
Today, we ask this constitutional body, the Judiciary
Committee, the preserver of the Constitution, to look carefully
at an independent investigation of this matter, the uncovering,
if you will, of a covert operative, which by the very existence
of that action by Robert Novak has now jeopardized covert
agents around the world, CIA agents who have put their lives on
the line so that we might be safe.
I am saddened by the debate that has occurred here and I
must take issue, Mr. Chairman, with any suggestion of a
political sideshow, because I recall, though I did not have the
opportunity to be in this Committee room during the impeachment
proceedings of Richard F.--Richard Nixon, Milhous Nixon, I am
assured, however, of the respect that was given to that process
by those who were in this room.
I'm also well aware that while simultaneous executive
investigations were going on regarding campaign finance reform
and, as well, the Waco incident, that this Congress and this
Committee were taking advantage of their responsibility and
investigating.
The two amendments that I have would answer your question.
The first one, of course, dealing with information where the
prosecutor would be able to determine what documents came to
this House, would protect the integrity of the prosecutor. The
second one specifically requires that this Committee receive
information about discussions with journalists and other
members of the media, recognizing the First Amendment
privilege, but it would allow us to review those documents just
as those in the media review them.
The crux of this issue is that someone in the
Administration leaked the covert identity of this young woman,
this patriot, this person who was trying to provide for the
safety of this nation. I am not going to allow and should not,
I believe--we should not allow the counsel of Mr. Fitzgerald,
of which I do not challenge his integrity or his ability to do
his job, but we should not abdicate our responsibilities in
this House of doing our job.
I cannot imagine, Mr. Chairman, why this Committee would
not want to join together in a bipartisan manner to support
these amendments and report favorably this resolution. I'd ask
my colleagues to do so, and I yield back the balance of my
time.
Chairman Sensenbrenner. I recognize myself for 5 minutes in
opposition to the amendments en bloc.
There are two amendments that the gentlewoman from Texas
has proposed. The first amendment says that Mr. Fitzgerald, who
is the designated prosecutor in this matter, can refuse to turn
over materials to the Congress that would interfere with the
investigation. That puts Mr. Fitzgerald in a terrible position,
because in effect what he is saying is that every document or
every piece of evidence that he has obtained is relevant to the
investigation. If he comes back with a letter saying that
everything is relevant to the investigation and turning them
over would be an interference, particularly with the provisions
of rule 6(e) of the Federal Rules of Criminal Procedure on
grand jury secrecy, and if he says he won't turn over anything,
then we're going to hear allegations that he's not objective
and that he's stonewalling.
I don't think we should put this man, whom everybody seems
to have a great deal of trust and faith in, in that kind of a
position where a determination on which materials would
interfere with the investigation and which would not end up
becoming a political issue. He would then have to either state
which materials he's not turning over because it would
interfere with the investigation, and there's where rule 6(e)
comes in, because if he talks about materials that the grand
jury is doing, then the prosecutor has violated rule 6(e) and
can be prosecuted himself. So don't put Mr. Fitzgerald in this
position.
The second part of the amendments en bloc that have been
offered by the gentlewoman from Texas requires people in the
White House staff and in the Department to turn over records of
discussions with journalists and other members of the media,
and that puts a chilling effect on anybody in the executive
branch from talking with journalists.
Now, I don't condone a leak and I don't condone a criminal
violation of material that is leaked. But I don't think we
should have a broad brush and say every time somebody talks to
a journalist to give them information on what their position is
or what they're doing or what the position of the
Administration is, that that may end up being the subject of a
resolution of inquiry.
In order for the press to operate properly, they have to be
able to seek out from whatever sources they feel are relevant
information that they need in order to give that information to
the public. To have a chilling effect put on any Government
official as a result of an amendment to a resolution of this
nature, I think will not allow the press to do their job in the
way that the Framers of the First Amendment expected the press
to do so. So vote against the amendments en bloc----
Ms. Jackson Lee. Would the gentleman yield?
Chairman Sensenbrenner.--and I yield back the balance of my
time.
Ms. Jackson Lee. Mr. Chairman, would you yield?
Chairman Sensenbrenner. The question is on adoption of the
amendments en bloc. Those in favor will say----
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you. I strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you. I yield to the gentlelady from
Texas.
Ms. Jackson Lee. I thank the distinguished gentleman very
much and I will attempt in this very august room to be brief.
But I would just simply say to the Chairman and to my
colleagues, far be it from me to institute any chilling effect
from the verbosity of the Administration and their willingness
to be open to the American public and to highlight any of their
ills and sins in the national media. Any time that they want to
do a mea culpa and have a press conference, I'd be willing to
stand aside and allow them to do so. What I'm arguing for,
however, is that we need to know the truth of the principals
who are engaged in leaking a disastrous statement about the
uncovering of a covert agent.
In addition, the amendment regarding the prosecutor, it is
respecting Mr. Fitzgerald's integrity by allowing him to
determine what documents we would receive.
It is frivolous to suggest that in this Congress, only
Republicans can investigate Democrats and Democrats cannot
investigate Americans. We must do this together on behalf of
the American people.
I remind you, 540 are dead and more are dying in Iraq. The
basis upon which they went was the existence, as represented by
this Administration, of weapons of mass destruction. No, this
is not the Armed Services Committee. It is not the Intelligence
Committee. It is not even the International Relations
Committee. It is the Justice Committee, judiciary, where the
Constitution has to be protected. We're not protecting it
today. We are now skating over the facts that the
Administration has violated the sanctity and trust of a covert
agent that now jeopardizes not only her life, but the lives of
those who depended upon her information and her work.
I am simply asking that we amend this resolution to draw us
together in a bipartisan way, and Mr. Chairman, I would ask
you, is there any way that the Republicans of this particular
Committee would work with us in a bipartisan manner to achieve
what is necessary, an independent investigation by this body,
the United States Congress?
I cannot imagine that we have just gone through an
impeachment of a President of the United States on his sexual
activities that the American people said they did not want. Now
the American people have asked the question, who made the
representations of weapons of mass destruction, and, of course,
why we would engage in the uncovering of an innocent CIA agent
trying to protect our sanctity and our security. I cannot
imagine why these amendments would not be credible and
legitimate and the resolution of this default would not come
from this Committee in a favorable posture.
I'd ask my colleagues to support these amendments and I'd
ask my colleagues to ask themselves and to address their
conscience as to how they could sit here in this room and show
such a lack of responsibility for the respect of this body and
this Congress, that we would not allow ourselves to, in a
parallel manner, investigate this process with the integrity of
these amendments that we've asked to give the U.S. Attorney
every opportunity to do his job.
I thank Mr. Nadler and I would be happy to yield back to
him.
Mr. Nadler. Thank you. I thank the gentlelady. I support
her amendment as I support this resolution, for the obvious
reasons that we have stated before. There must be an
independent investigation of this continuing cover-up by the
Administration. I say cover-up because if they weren't covering
it up, they would have told the members of the Administration
to waive the journalistic privilege and we would have had the
answer to this question of who endangered lives of American
agents by outing an existing CIA agent. We would have had that
answer in 5 minutes flat.
So I support this amendment. I support the resolution. I
yield back.
Chairman Sensenbrenner. The question is on agreeing to the
amendments----
Mr. Schiff. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff?
Mr. Schiff. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. Mr. Chairman, Members, I think that the passage
of H. Res. 499 is extraordinarily important, not only in its
own right, not only to determine the facts surrounding the
disclosure of a CIA officer's name, but also because of the
context that we find ourselves in, the context in which we have
gone to war in Iraq on the basis of intelligence about the
possession of weapons of mass destruction that we have not as
yet found and may never find.
And in the face of these circumstances, when an allegation
has been raised that even in its own right the disclosure of an
agent's identity, an officer's identity for political purposes,
to chill the disclosure of information that would cause
question about a claim made in the State of the Union is
extraordinarily important.
There are two questions that are involved in this case of
the disclosure of Ms. Plame. The first is, has a crime been
committed, and the second is, what steps should Congress take
to protect the identity of its agents and the sanctity of the
intelligence gathering process from political influence,
intimidation, or manipulation.
These are two very different questions and they cannot be
answered by the same source. It is Mr. Fitzgerald's job as a
special counsel to answer the first question, has a crime been
committed. It is the Congress's responsibility to answer the
second question, what steps should we take to ensure the
sanctity of our intelligence gathering process and protect the
identity of our agents.
Mr. Fitzgerald cannot undertake the second task. We cannot
seek an indictment in response to the first question. But
rather, these are separate functions, and I am sure, having
come from the Justice Department myself, that if it were solely
left to the Justice Department or Mr. Fitzgerald, they would
prefer a Congressional investigation not take place. They would
prefer to focus on their sole jurisdiction of determining
whether a crime has been committed.
As a former prosecutor, I never welcomed other
investigations by other bodies which in some way could
influence or direct my own, but that was because I had a job to
do that I was focused on.
We in Congress also have the job to do that we need to
focus on and the two are not mutually incompatible. We need to
get to the bottom of the facts concerning the disclosure of
this officer's identity so that we can begin the
extraordinarily important process of identifying the flaws that
we have in our intelligence gathering, the flaws that we may
have in the analysis of that intelligence, and a determination
about how our intelligence is used, whether good information is
being suppressed for motivations that have nothing to do with
the best interests of the country.
It is difficult to comprehend a more important task for the
Congress at this time, and in light of that, we ought to
proceed on dual tracks. We ought to investigate whether a crime
has been committed and bring charges if it has. That is an
extraordinarily difficult task, particularly given the code
sections involved here, particularly given the fact that some
of the source of the disclosure came from the media. The odds
in favor of prosecution are not high. And under those
circumstances, we cannot rely solely on the deterrent value of
an indictment and conviction.
We must undertake our own investigation, draw our own
policy conclusions, and implement the results, and without
prejudging what conclusion we will reach or where the facts may
lead us, it is fair to say that this is an extraordinarily
important undertaking. It could not have been made more
important by the events of the last several months and by the
conclusions of Dr. Kay and others that we were all wrong.
It is our job in this body to find out why we are wrong.
It's our job in this body to find out whether agents that were
in a position to provide contrary information were being
intimidated, whether all the facts have bubbled to the surface
that should have come before the Congress in making the
decisions we have made.
And for all of these reasons, I urge my colleagues to lend
their support to H. Res. 499. We should not be afraid of the
facts. We should not be afraid of following them to their
logical conclusion and I urge your support and yield back the
balance of my time.
Chairman Sensenbrenner. The question is on agreeing to the
amendments----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. I thank the Chairman and let me do a couple of
things in the 5 minutes. First of all, I missed the vote on Ms.
Jackson Lee's prior amendment and I would ask unanimous consent
that it appear in the record that had I been able to be here
and vote, I would have supported her amendment.
Chairman Sensenbrenner. The complete transcript of the
hearing or the markup is contained in the Committee report,
which will include the statement that the gentleman from North
Carolina just made. I think that should suffice.
Mr. Watt. Yes. That's all I was asking for. Unfortunately,
there are two markups going on on the two Committees that I am
a Member of and they're forcing me to be in two different
places at one time.
On the substance of this amendment and the underlying bill,
I would have to say that the amendment obviously addresses some
of the concerns that I have about the underlying bill. I share
many of the concerns that the Chairman expressed in his opening
statement about our jeopardizing an investigation, and I guess
it's because I come from a background that suggests to me that
any external influence in an investigation, prosecution, and
court determination of guilt or innocence is inappropriate, and
I have had that reservation as we have on prior occasions in
this Committee and in the Congress in other Committees injected
ourselves into issues that were under active criminal
investigation and prosecution.
I have come to grips on those prior occasions, and over
time, with the notion that Mr. Schiff just expressed, and that
is that we have a parallel responsibility to oversee and set
policy that sometimes requires information that is the subject
of ongoing investigations, and so we have to exercise that
responsibility, too.
I think the reservation I still have is that sometimes when
we get the information over here to do our, fulfill our
responsibility of legislating and setting policy, we treat it
not with the kind of confidentiality that the legal system
treats it with and we should be able to get sensitive
information, as the Intelligence Committee does, and privileged
information, as we as a Judiciary Committee should get, and be
able to maintain the confidentiality and do our job. I have
seen instances in which we are not fulfilling our
responsibilities to maintain the confidentiality of information
and it has, on occasion, jeopardized prosecutions or resulted
in reversals of prosecutions on some occasions.
So I think I come down pretty much where Mr. Schiff does on
this, despite reservations. I just wish we would--all of us
would apply the same kind of analysis whether a Democratic
administration or a Republican administration were in place,
and I applaud the Chairman at least for having been consistent
in his views about the special counsel legislation, but I think
there are a number of instances in which we have not exercised
that same kind of consistency and it gives us, gives the world
the impression, the nation the impression that we are being
political in these deliberations rather than applying a uniform
principle.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Watt. I yield back.
Chairman Sensenbrenner. The question is on the amendments
en bloc offered by the gentlewoman from Texas, Ms. Jackson Lee.
Those in favor will say aye. Opposed, no. The noes appear to
have it. The noes have it and the amendments are not agreed to.
Are there further amendments?
[No response.]
Chairman Sensenbrenner. If there are no further amendments,
a reporting quorum is present. The question is on the motion to
report H. Res. 499 adversely. Those in favor will signify by
saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it--the gentleman
from New York.
Mr. Nadler. I request the ayes and nays.
Chairman Sensenbrenner. The yeas and nays are requested and
will be ordered. Those in favor of reporting H. Res. 499
adversely will, as your names are called, answer aye, those
opposed, no, and the Clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
[No response.]
The Clerk. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye. Mr. Forbes?
[No response.]
The Clerk. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Carter?
Mr. Carter. Aye.
The Clerk. Mr. Carter, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
[No response.]
The Clerk. Mr. Conyers?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
[No response.]
The Clerk. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. No.
The Clerk. Mr. Meehan, no. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
[No response.]
The Clerk. Ms. Sanchez?
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Members in the chamber who wish to
cast or change their vote? The gentleman from California, Mr.
Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their vote? The gentleman from California, Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no.
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Delahunt.
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no.
Chairman Sensenbrenner. Anybody else who wishes to cast or
change their vote? If not----
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York.
Mr. Nadler. Mr. Chairman, how am I recorded, please?
Chairman Sensenbrenner. How is Mr. Nadler recorded?
The Clerk. Mr. Chairman, Mr. Nadler is recorded as no.
Mr. Nadler. Mr. Chairman, that is correct.
Chairman Sensenbrenner. Good.
Ms. Sanchez. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers?
Mr. Conyers. Aye--no.
The Clerk. Mr. Conyers, no.
Ms. Sanchez. Mr. Chairman, may I inquire how I am recorded?
Chairman Sensenbrenner. How is the gentlewoman from
California, Ms. Sanchez, recorded?
The Clerk. Mr. Chairman, Ms. Sanchez is recorded as a no.
Chairman Sensenbrenner. Did she make a mistake?
Ms. Sanchez. No. That is correct, Mr. Chairman.
Chairman Sensenbrenner. Okay. Further Members who wish to
cast or change their vote? If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 17 ayes and 8 noes.
Chairman Sensenbrenner. And the motion to report adversely
is agreed to. Without objection, the staff is directed to make
any technical and conforming changes. All Members will be given
2 days as provided by the House rules in which to submit
additional dissenting supplemental or minority views.
Let me bring to the attention of the Members that the
referral of this resolution expires on Friday, so that means
that the additional dissenting supplemental or minority views
will have to be submitted by Friday since we must file the
Committee report by the close of business on that day.
The chair thanks the Members for their participation and
the Committee stands adjourned.
[Whereupon, at 11:22 a.m., the Committee was adjourned.]
Dissenting Views
We strongly dissent from the majority's unfavorable
reporting of H. Res. 499. We are shocked by this Committee's
abdication of its oversight role of the Department of Justice
(DOJ).
For months we have been aware of a shocking and shameful
incident. In an effort to build the case for preemptive war,
the President declared in his 2003 State of the Union address
that Iraq had tried to buy uranium from Niger, even after
former Ambassador Joseph Wilson, IV, informed the
Administration this was not true. In an attempt to intimidate
Wilson and others who might tell the truth about the war, high
ranking administration officials started shopping around
classified information to reporters--the fact that his wife is
a CIA operative, along with her name.
The leak of Valerie Plame's name and undercover status
jeopardized not only her life, but the lives of all those she
worked with over decades of service to our country. We can
think of very few situations that more strongly call for
Congressional oversight. This incident needs our immediate
attention not only to get to the bottom of who leaked Plame's
status, but to determine whether the White House and the
Justice Department properly guarded this information in the
first place and took appropriate steps to remedy the leak in
its aftermath.
1. HISTORY OF THE LEAK
In February 2002, former ambassador Joseph Wilson, IV, was
sent to Niger by the CIA, on behalf of the Bush administration,
to investigate claims that Iraq was attempting to buy yellow
cake uranium in that country.\1\ When Wilson returned, he
informed the CIA and the State Department that the claims were
unsubstantiated.\2\
---------------------------------------------------------------------------
\1\ Mike Allen and Dana Priest, Bush Administration is Focus of
Inquiry, Wash. Post, Sept. 28, 2003 at A1. Wilson was a diplomat for 22
years and served as President Clinton's director of African affairs on
the National Security Council.
\2\ Id.
---------------------------------------------------------------------------
Nearly a year later, the President stated that Iraq tried
to purchase uranium in Africa during his State of the Union
address: ``The British government has learned that Saddam
Hussein recently sought significant quantities of uranium from
Africa.'' \3\ In response, Wilson published an op-ed in July
2003 publicizing his findings, or lack thereof.\4\
Approximately 2 weeks later, journalist Robert Novak used his
widely syndicated column to defend the Administration's choice
to invade Iraq and call Wilson's credibility into question.\5\
Painting Wilson's assignment to Niger as a favor to Wilson's
wife, Novak stated, ``Wilson never worked for the CIA, but his
wife, Valerie Plame, is an Agency operative on weapons of mass
destruction. Two senior administration officials told me
Wilson's wife suggested sending him to Niger to investigate . .
.'' \6\ It was soon revealed that those administration
officials called at least six members of the press to
disseminate Plame's undercover identity.\7\ Inside sources and
most commentators suspect that the motivation was ``revenge''
for publicly discrediting the President's main justification
for invading Iraq and an attempt to preemptively silence other
whistle blowers.\8\
---------------------------------------------------------------------------
\3\ President George W. Bush, State of the Union, (January 28,
2003).
\4\ Joseph C. Wilson, IV, What I didn't Find in Africa, July 6,
2003.
\5\ Robert Novak, Mission to Niger, July 14, 2003.
\6\ Id.
\7\ See supra note 2.
\8\ David Johnston, ``Top Bush Aide is Questioned in CIA Leak,''
N.Y. Times, Feb. 10, 2004 at A1 (``. . . prosecutors have cited
evidence that White House officials were extremely upset by Mr.
Wilson's article and were angry at the CIA for sending him to Africa .
. .''); Mike Allen and Dana Priest, ``Bush Administration is Focus of
Inquiry,'' Wash. Post, Sept. 28, 2003 at A1 (``Clearly, it was meant
purely and simply for revenge.'').
---------------------------------------------------------------------------
The CIA responded immediately, and contacted the DOJ four
times in the span of 3 weeks to notify the Department that the
disclosure of Plame's name and status probably violated the law
and to request an investigation.\9\ On September 29, over a
month after the CIA first notified the DOJ, the Department
confirmed that the FBI would be investigating the leak.
---------------------------------------------------------------------------
\9\ Letter from Stanley M. Mosowitz, Director of Congressional
Affairs to John Conyers, Jr., Ranking Member of the House Judiciary
Committee, (Jan. 30, 2004) available at http://www.house.gov/
judiciary_democrats/cialeakinforesp13004.pdf.
---------------------------------------------------------------------------
At first, the President appeared committed to cooperating
with the investigation and tracing the leak to its source: ``.
. . if there is a leak out of my administration, I want to know
who it is . . . I welcome the investigation.'' \10\ However,
the administration's tone changed quickly. No longer making
blanket statements about the innocence of his staff, the
President turned to narrow legalisms, instead claiming that no
one had technically broken the law.\11\ Eventually the
President appeared completely resigned to the idea that the
investigation would be fruitless: ``I don't know if we're going
to find out the senior administration official . . . Now this
is a large administration, and there's a lot of senior
officials. I don't have any idea.'' \12\
---------------------------------------------------------------------------
\10\ Dana Milbank and Susan Schmidt, Justice Department Launches
Criminal Probe of Leak, Wash. Post, Oct. 1, 2003 at A1.
\11\ Dana Milbank and Mike Allen, Outside Probe of Leaks Is
Favored, Wash. Post, Oct. 2, 2003.
\12\ Dana Milbank, ``No Idea'' About Leak Inquiry, Wash. Post, Oct.
8, 2003.
---------------------------------------------------------------------------
These statements appeared to effect the progress of the
investigation. An F.B.I. official commented that ``It wouldn't
surprise me if we went a little bit slower on this one just
because it is so high profile. This will get scrutinized at our
headquarters and at Justice in a way that lesser, routine
investigations wouldn't.'' \13\ That prophecy was fulfilled,
and in the words of a senior White House official the
investigation was stalled: ``We have let the earth-movers roll
in over this one.'' \14\
---------------------------------------------------------------------------
\13\ Richard Stevenson and Eric Lichtblau, White House Looks to
Manage Fallout Over CIA Leak Inquiry, N.Y. Times, Oct. 2, 2003.
\14\ James Harding, The Agent's Tale, Financial Times, Dec. 5,
2003.
---------------------------------------------------------------------------
This lack of outrage by the Administration and lack of zeal
on the part of the Justice Department were not the only
disconcerting factors in the investigation. Instead, the first
3 months of the investigation were fraught with apparent
conflicts of interests and procedural irregularities.
On December 31, 2003, the Attorney General recused himself
from the investigation and Patrick Fitzgerald, the U.S.
Attorney in Chicago, was appointed to head the efforts. Recent
press reports confirm that White House staff are being
interviewed by investigators, although many are refusing to
sign a waiver of their journalistic privilege, which would
allow the press to disclose who among the Administration leaked
Plame's undercover status.\15\ It has also been confirmed that
investigators are presenting evidence to a grand jury. Press
reports include Ari Fleischer, Karl Rove, Scott McClellan, Mary
Matalin and other Presidential and Vice Presidential staffers
among those who have testified.\16\ It is also an open question
whether the Administration Officials are invoking their Fifth
Amendment right against self-incrimination.
---------------------------------------------------------------------------
\15\ Mike Allen and Susan Schmidt, Bush Aides Testify in Leak
Probe, Wash. Post, Feb. 10, 2004 at A1.
\16\ Id.; Johnston, supra note 8.
---------------------------------------------------------------------------
There are several instances of personal bias in this
situation that are more than apparent. For example, Karl Rove,
political advisor to the President, was named by several
sources as an instigator of the leak.\17\ He worked on Attorney
General Ashcroft's campaigns throughout the 1980's and 90's
raking in nearly three-quarters of a million dollars in
fees.\18\ While at first blush, it might appear that the
Attorney General wouldn't be involved with the investigation on
a regular basis, Associate Deputy Attorney General Christopher
Wray testified before the Senate Judiciary Committee that he
regularly briefs the AG on the investigation.\19\ These
conflicts existed not only between the Attorney General and
likely targets of the investigation, but between lower level
investigators and the President. Robert McCallum, the Assistant
Attorney General who initially oversaw the investigation is an
old friend of the President's from Yale.\20\ Also, James Comey,
Jr., the Deputy Attorney General and in charge of the
investigation since Attorney General Ashcroft recused himself,
is extremely close with Mr. Fitzgerald. In fact, Mr. Fitzgerald
is the godfather of Mr. Comey's child.\21\
---------------------------------------------------------------------------
\17\ Joseph Wilson, Nightline (ABC television broadcast, Sept. 30,
2003) (``I just got off the phone with Karl Rove. He tells me your wife
is fair fame.''); Newsweek, Oct. 13, 2003 (reporting that Chris
Matthews of MSNBC's Hardball was the journalist contacted by Rove.)
\18\ Michael Duffy, Leaking With a Vengeance, Time, Oct. 5, 2003.
\19\ Eric Litchtblau, N.Y. Times, Oct. 22, 2003
\20\ Richard B. Schmitt and Edwin Chen, Leak Inquiry Embarks on a
Long Road, L.A. Times, Oct. 2, 2003 at 14.
\21\ David Von Drehle and Dan Eggen, Head of Leak Prove is Called
Relentless, Wash. Post, Jan. 1, 2004.
---------------------------------------------------------------------------
There have also been a number of procedural irregularities
that beg the question of whether the investigation has always
been pursued with due diligence. For example, the DOJ waited 3
days before notifying the White House of the Investigation, and
the White House in turn waited 11 hours before asking all staff
to preserve any evidence.\22\ What evidence that employees have
turned over have been screened for ``relevance'' by White House
counsel, perhaps filtering out critical information.\23\ And as
to the pace of the investigation, FBI sources were quoted as
saying that the Department was ``going a bit slower on this one
because it is so high-profile.'' \24\ For many, all these
factors have worked in tandem to create at the very least the
appearance of impropriety warranting some sort of independent
investigation.
---------------------------------------------------------------------------
\22\ Editorial, Investigating Leaks, N.Y. Times, Oct. 2, 2003.
\23\ Richard Stevenson and Eric Lichtblau, Leaker May Remain
Elusive Bush Suggests, N.Y. Times, Oct. 8, 2003.
\24\ Richard Stevenson and Eric Lichtblau, Attorney General is
Closely Linked to Inquiry Figures, N.Y. Times, Oct. 2, 2003.
---------------------------------------------------------------------------
This litany of factors has led nearly all commentators not
associated with the Administration nor the Republican party to
call on Attorney General Ashcroft to appoint a special counsel.
Federal regulations provide that a special counsel should be
appointed to a criminal investigation when there is a conflict
of interest within the DOJ and public interest would served by
an impartial prosecutor.\25\ Special counsels must come from
outside the Federal Government,\26\ ensuring that they are not
beholden to anyone they may have to investigate. Once
appointed, a special counsel gets extraordinary leeway to
conduct an investigation as he or she sees fit. For example, a
special counsel is not subject to day-to-day oversight by the
DOJ,\27\ and in fact can only be dismissed for cause.\28\
Perhaps most importantly, once a special counsel makes a
recommendation to the Attorney General, the latter must
formally explain his reasons if he chooses not to follow
it.\29\ Because Mr. Fitzgerald is not a special counsel under
the regulations, nor can he be since he comes from within the
Federal Government, none of these safeguards exist.
---------------------------------------------------------------------------
\25\ 28 C.F.R. 600.1.
\26\ 28 C.F.R. 600.3.
\27\ 28 C.F.R. 600.7(b).
\28\ 28 C.F.R. 600.7(d).
\29\ 28 C.F.R. 600.9(a)(3).
---------------------------------------------------------------------------
Despite repeated requests for a special counsel from
members of both the House and the Senate, none has been
appointed to date. In fact, all attempts by Democratic members
of this Committee to exercise their oversight authority in less
intrusive manners than a Resolution of Inquiry have failed. On
September 29, 2003, Ranking Member John Conyers, Jr. requested
a staff briefing from the DOJ.\30\ Attorney General Ashcroft
did not respond. On October 30, 2003, every democratic member
requested a full committee hearing from Chairman Sensenbrenner,
which was denied.\31\ As these intermediate options were ruled
out, this Resolution of Inquiry became ever more appropriate.
---------------------------------------------------------------------------
\30\ Letter from John Conyers, Jr., Ranking Member of House
Judiciary Committee to Attorney General John D. Ashcroft, (Sept. 29,
2003) available at http://www.house.gov/judiciary_democrats/
agleakcianameltr92903.pdf.
\31\ Letter from John Conyers, Jr., Ranking Member of the House
Judiciary Committee, to the Honorable F. James Sensenbrenner, Jr.,
Chairman, House Judiciary Committee (Oct. 30, 2003) available at http:/
/www.house.gov/judiciary_democrats/cialeakltr103003.pdf.
---------------------------------------------------------------------------
2. WHOEVER LEAKED THE INFORMATION
MOST LIKELY VIOLATED FEDERAL LAW
There are at least two possible Federal crimes that may
have been committed by whoever in the Administration leaked
Plame's undercover CIA status. First, the Intelligence
Identities Protection Act of 1982 (50 U.S.C. 421) provides for
fines and 10 years imprisonment for anyone who: 1)
intentionally discloses information identifying an undercover
agent, 2) knowing that the disclosure will reveal the agent as
such, when 3) the United States is taking affirmative measures
to conceal the agent's intelligence relationship to the U.S.
Administration Officials may also have violated 18 U.S.C.
793, which prohibits the gathering, transmitting or losing
defense information. This law prohibits communicating national
defense information that the possessor has reason to believe
could be used to the injury of the United States.\32\ It also
criminalizes the leaking of information relating to the
national defense through gross negligence,\33\ and imposes an
affirmative duty to report a leak when discovered.\34\ It is
important to note that information need only ``relate to'' the
national defense, and that the leaker need not intentionally
share the information to violate this provision.
---------------------------------------------------------------------------
\32\ ``(d) Whoever, lawfully having possession of . . . information
relating to the national defense which information the possessor has
reason to believe could be used to the injury of the United States or
to the advantage of any foreign nation, willfully . . . causes [or
attempts to cause] to be communicated, delivered, or transmitted . . .
to any person not entitled to receive it, or willfully retains the same
and fails to deliver it on demand to the officer or employee of the
United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control
over any . . . information relating to the national defense which
information the possessor has reason to believe could be used to the
injury of the United States or to the advantage of any foreign nation,
willfully communicates, delivers, transmits or causes to be
communicated, delivered, or transmitted, or attempts [to do so] . . .
to any person not entitled to receive it, or willfully retains the same
and fails to deliver it to the officer or employee of the United States
entitled to receive it; or . . .''
---------------------------------------------------------------------------
\33\ ``(f) Whoever, being entrusted with or having lawful
possession or control of any . . . information, relating to the
national defense,
(1) through gross negligence permits the same to be removed
from its proper place of custody or delivered to anyone in
violation of his trust, or to be lost, stolen, abstracted,
or destroyed, or . . .''
---------------------------------------------------------------------------
\34\ ``(2) having knowledge that the same has been illegally
removed from its proper place of custody or delivered to anyone in
violation of its trust, or lost, or stolen, abstracted, or destroyed,
and fails to make prompt report of such loss, theft, abstraction, or
destruction to his superior officer . . .'' may be imprisoned for up to
10 years and be subject to a fine.
---------------------------------------------------------------------------
3. THE MAJORITY'S CONCERNS ARE UNFOUNDED IN LAW
OR PRECEDENT
A. LThis request would not interfere with the Justice Department's
ongoing criminal investigation.
The majority argued during the markup that the DOJ is
handling the investigation properly and that Congressional
intervention at this point would jeopardize the criminal
investigation. Despite claims to the contrary, there is long
standing precedent for this committee to conduct oversight
concurrently with an ongoing DOJ investigation:
LIn 1997 the Committee held hearings on
campaign improprieties in the 1996 presidential
election. The Justice Department was conducting its own
investigation and determining whether an independent
counsel was warranted. In addition to taking testimony
from Attorney General Janet Reno, the Committee
requested all documents, including deliberative
memoranda, relating to the appointment of a special
counsel. The DOJ provided many of these documents to
the Committee.\35\
---------------------------------------------------------------------------
\35\ Oversight of the Department of Justice: Hearing Before the
House Committee on the Judiciary, 105th Cong. (1997); Letter from the
Honorable Henry J. Hyde, Chairman of the House Committee on the
Judiciary to Attorney General Janet Reno (July 24, 1998) available at
http://www.house.gov/judiciary/072498.htm; Letter from the Honorable
Henry J. Hyde, Chairman of the House Committee on the Judiciary to
Attorney General Janet Reno (Apr. 5, 2000) available at http://
www.house.gov/judiciary/b5b88a00.pdf.
LIn 1995, the Subcommittee on Crime heard 12
days of testimony as part of a congressional
investigation to Federal actions at Waco, with
soldiers, officers, ATF, FBI and Treasury Department
officials testifying. The full Committee went on to
take testimony from the Attorney General, the Director
of the FBI and Davidian victims. Numerous criminal and
civil cases relating to the Branch Davidians were
pending at the time of the hearing.\36\
---------------------------------------------------------------------------
\36\ Federal Actions at Waco, Texas: Hearing Before the
Subcommittee on Crime, House Committee on the Judiciary, 104th Cong.
(1995).
LIn 1990-92, the Committee investigated
whether the Justice Department helped run INSLAW, a
small computer company into insolvency. The Committee
subpoenaed documents, heard testimony from government
officials and Federal judges while an independent
counsel investigated criminal allegations.\37\
---------------------------------------------------------------------------
\37\ The INSLAW Affair, H.R. Rep. No. 102-857 (1992).
In fact, congressional committees have long been
investigating matters that are under criminal review by the
---------------------------------------------------------------------------
executive branch. For example:
LIn 1997-99, the Senate Governmental Affairs
Committee investigated campaign financing while the FBI
and the DOJ's Campaign Finance Task Force was
conducting a criminal investigation. The Committee
subpoenaed FBI agents, Task Force attorneys, and
obtained a number of documents including the notes of
special agents, draft affidavits, notes of the Task
Force supervisor and internal memos.\38\
---------------------------------------------------------------------------
\38\ See, e.g., Campaign Finance Investigation: Hearing before the
Senate Governmental Affairs Committee, 105th Cong. (1997).
LIn 1997-2000, the House Government Reform
Committee conducted its own investigation into possible
campaign improprieties by the Clinton Administration
and the Democratic party. The Committee had Attorney
General Janet Reno testify during hearings and
subpoenaed deliberative memos from FBI Director Louis
Freeh and Campaign Task Force Leader Charles LaBella.
When Reno refused to comply, the Committee held her in
contempt. Eventually the Committee received all the
documentation it requested.\39\
---------------------------------------------------------------------------
\39\ See for example, Hearing on John Huang and the Riady Family
before the House Government Reform Committee, 106th Cong. (1999); see
also, Investigation into Allegations of Justice Department Misconduct
in New England--Volume 1 Before the Committee on Government Reform,
House of Representatives, 107th Cong., 1st and 2nd Sess.(2001-02)
(testimony of Morton Rosenberg, Congressional Research Service,
American Law Division) (discussing the history of the House Government
Reform Committee's investigation of campaign finance violations).
LIn 1999-2000, the House Government Reform
Committee investigated Federal law enforcement actions
at Waco. The Committee subpoenaed FBI investigative
files, interviewed 20 FBI agents and reviewed over a
million documents. At the same time, former Senator
Danforth was investigating as a Special Counsel.\40\
---------------------------------------------------------------------------
\40\ Tragedy at Waco: New Evidence Examined, H.R. Rep. No. 106-1037
(2000).
LIn 2000-2001, the House Government Reform
Committee investigated President Clinton's use of
pardons. The majority issued 153 requests and subpoenas
for documents, and ultimately received over 25,000
pages. U.S. Attorney Mary Jo White was conduction her
own criminal investigation at the time.\41\
---------------------------------------------------------------------------
\41\ Justice Undone: Clemency Decisions in the Clinton White House,
H.R. Rep. No. 107-454 (2002).
LIn 2000-2001, the House Government Reform
Committee investigated the Boston FBI field office's
use of confidential informants. The Committee
subpoenaed FBI files, direct evidence, such as wiretap
logs, and deliberative memos. At the time of this
investigation, an FBI agent, John Connelly, was under
indictment.\42\
---------------------------------------------------------------------------
\42\ Everything Secret Degenerates: The FBI's Use of Murderers as
Informants, H.R. Rep. No. 108-414 (2003).
In fact, in 4 years, the Clinton administration turned over
1.2 million pages of documents--including criminal
investigators' files, evidence, and deliberative memoranda--to
the House Government Reform Committee alone despite ongoing
criminal investigations.\43\ There are scores of examples from
other Committees also:
---------------------------------------------------------------------------
\43\ http://www.house.gov/reform/min/pdfs/pdf_com/
pdf_clinton_doc_prodoc_rep.pdf
LFor example, in 2002 the Senate Governmental
Affairs Committee investigated the collapse of Enron
Corporation and its outside auditor Arthur Andersen
while the SEC investigated possible criminal
violations. The Committee took testimony from several
executives during hearings. In all, there were 30
hearings within the House and Senate between 2001 and
2003.\44\
---------------------------------------------------------------------------
\44\ See e.g., The Role of the Board of Directors in Enron's
Collapse: Hearing before the Permanent Subcommittee on Investigations,
Senate Governmental Affairs Committee, 107th Cong. (2002).
LIn 2002, the House Energy and Commerce
Committee investigated Martha Stewart for insider
trading allegations involving ImClone stock while
Martha Stewart and ImClone officials were under
investigation by the DOJ.\45\
---------------------------------------------------------------------------
\45\ An Inquiry into the Imclone Cancer Drug Story: Hearing before
the Subcommittee on Oversight and Investigations, House Committee on
Energy and Commerce, 107th Cong. (2002).
LIn 2002, the House Financial Services
Committee investigated the WorldCom scandal while
criminal and civil cases were pending. During hearings,
analysts and the chairman of the board testified, while
other executives refused to testify citing the 5th
Amendment.\46\
---------------------------------------------------------------------------
\46\ Wrong Numbers: The Accounting Problems at Worldcom: Hearing
Before the House Committee on Financial Services, 107th Cong. (2002).
Finally, the General Accounting Office (GAO) has
traditionally conducted investigations while parts of the
administration were pursuing criminal investigations. For
---------------------------------------------------------------------------
example:
LIn 1998-2001, the GAO investigated the
actions of FBI investigators in the Wen Ho Lee
espionage case. Lee was under investigation by the FBI
from 1996 until his indictment in 1999.\47\
---------------------------------------------------------------------------
\47\ FBI Official's Congressional Testimony Was Inaccurate Because
He Failed to Present Certain Information That Had Been Made Available
to Him About the Wen Ho Lee Investigation, General Accounting Office,
GAO-01-869R, June 28, 2001.
LIn 1999-2000, the GAO investigated the Waco
incident while DOJ Special Counsel Danforth was still
conducting his investigation.\48\
---------------------------------------------------------------------------
\48\ Department of Defense: Military Assistance During the Branch
Davidian Incident, General Accounting Office, NSIAD-00-240R, Aug. 21,
2000; Department of Defense: Military Assistance Provided at Branch
Davidian Incident, General Accounting Office, NSIAD/OSI-99-133, Aug.
26, 1999.
LIn 1994-96, the GAO investigated the White
House Travel Office under the Clinton administration
while criminal investigations were being conducted by
the DOJ, the Internal Revenue Service, the Treasury
Department Inspector General and the Office of
Professional Responsibility.\49\
---------------------------------------------------------------------------
\49\ White House Travel Office, General Accounting Office, AIMD-96-
138R, Sept. 18, 1996; White House Travel Office Review, General
Accounting Office, T-GGD-96-33, Oct. 24, 1995.
Because of this long precedent of dual-track
investigations, we do not believe the limited congressional
oversight of the type envisioned by H. Res. 499 would
jeopardize DOJ efforts to investigate this matter. However, in
an effort to create a mutually agreeable solution, Ms. Jackson
Lee offered an amendment that would limit H. Res. 499's effect
to ``only those documents that the Federal official appointed
to carry out the criminal investigation of the Department of
Justice into the disclosure of Ms. Valerie Plame as an employee
of the Central Intelligence Agency determines would not
interfere with the investigation.'' In effect, it would have
vested Mr. Fitzgerald with the authority and flexibility to
determine what would interfere with his own investigation
instead of ruling out all Plame-related documents whether
intrusive on the criminal investigation or not. The amendment
was defeated by the majority.
This sort of delegation is not uncommon. Since the creation
of the Resolution of Inquiry, the House has given certain
respondents the latitude to screen their response when
appropriate, such as when the request implicated military
concerns or might be against the public interest.\50\ Allowing
the special prosecutor in this situation the same flexibility
would not have created an unbearable burden any more than in
those situations, especially considering in what high regard
Mr. Fitzgerald is held in. As Chairman Sensenbrenner stated,
``Mr. Fitzgerald is a man of unimpeachable integrity.'' It is
therefore unclear why doesn't trust his judgment in determining
what would interfere with his investigation.
---------------------------------------------------------------------------
\50\ Louis Fisher, House Resolutions of Inquiry, Congressional
Research Service, May 12, 2003 at 7-10.
---------------------------------------------------------------------------
B. LThis resolution does not violate Federal Rule of Criminal Procedure
6(e)'s requirement of grand jury secrecy.
The majority also argued that the resolution would violate
grand secrecy requirements.
Federal Rule of Criminal Procedure 6(e) prohibits the
disclosure of a ``matter occurring before a grand jury.'' \51\
However, as the DOJ's own Federal Grand Jury Practice manual
explains,
---------------------------------------------------------------------------
\51\ Fed. R. Crim. P. 6(e)(2).
Rule 6(e) does not cover all information developed
during the course of a grand jury investigation, but
only information that would reveal the strategy or
direction of the investigation, the nature of the
evidence produced before the grand jury, the views
expressed by members of the grand jury, or anything
else that actually occurred before the grand jury . . .
In short, to come within the Rule 6(e) secrecy
prohibition, the material in question must ``reveal
some secret aspect of the inner workings of the grand
jury.'' \52\
---------------------------------------------------------------------------
\52\ ``Federal Grand Jury Practice,'' Office of Legal Education,
Executive Office for United States Attorneys, Department of Justice,
August 2000 at 40 (emphasis added) (citing United States v. Smith, 123
F.3d 140, 148 (3d Cir. 1997); Anaya v. United States, 815 F.2d 1373,
1379 (10th Cir. 1987); Fund for Constitutional Gov't v. National
Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir. 1981); In re
Grand Jury Investigation, 630 F.2d 996, 1000 (3d Cir. 1980); In re
Grand Jury Investigation (Lance), 610 F.2d 202, 217 (5th Cir. 1980);
United States v. Stanford, 589 F.2d 285, 291 (7th Cir. 1978); United
States Industries, Inc. v. United States Dist. Court, 345 F.2d 18, 21-
22, (9th Cir. 1965); United States v. Interstate Dress Carriers, Inc.,
280 F.2d 52, 54 (2d Cir. 1960)).
Material created independently of the grand jury has long
been held to be outside of the grand jury secrecy rules.\53\ In
particular, investigative material gathered by law enforcement
agents instead of a grand jury has repeatedly been found to be
outside of Rule 6(e).\54\ That information is gathered with an
``eye toward ultimate use in a grand jury proceeding'' does not
invoke secrecy protections.\55\ As long as the investigative
information was not collected at the direction of a grand jury
nor is presented in a manner that reveals what took place in
front of the grand jury, disclosure is proper.\56\ In fact, DOJ
disclosure of this material would continue the long history of
its routine disclosure of criminal investigative information in
response to pressing Congressional inquiries such as this.\57\
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\53\ Id.
\54\ In re Grand Jury Subpoena, 920 F.2d 235, 242-43 (4th Cir.
1990); Anaya v. U.S., 815 F.2d 1373, 1379-80 (10th Cir. 1987); In re
Grand Jury Matter (Catania), 682 F.2d 61, 64 (3rd Cir. 1982); U.S. v.
Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960).
\55\ Catania, 682 F.2d at 64.
\56\ See supra note 32.
\57\ Morton Rosenberg, Investigative Oversight: An Introduction to
the Law, Practice and Procedure of Congressional Inquiry, Congressional
Research Service, Apr. 7, 1995 at 29-31. See also, Investigation into
Allegations of Justice Department Misconduct in New England--Volume 1
Before the Committee on Government Reform, House of Representatives,
107th Cong., 1st and 2nd Sess.(2001-02) (testimony of Morton Rosenberg,
Congressional Research Service, American Law Division) (listing 18
distinct Congressional investigations that acquired criminal files from
the DOJ).
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The documentation requested by H. Res. 499 would not betray
the ``inner workings of the grand jury.'' The records of
communications about Ms. Plame--phone logs, copies of emails,
internal White House memoranda--were created completely
independently of the grand jury process and are therefore not
protected by Rule 6(e). That some of these records may have
been presented to the grand jury by Mr. Fitzgerald's
prosecutorial team does not make them inaccessible either. This
resolution asked for all documentation relating to the leak;
and if all documentation were turned over to the House without
any signification of which documents were actually presented to
the grand jury, Rule 6(e) protections would remain intact.
In that this resolution incidentally requested any
materials that would reveal grand jury information, such as
prosecutorial documents discussing grand jury strategy, or
compilations of evidence created by the prosecution, we did not
expect disclosure. As with any request for information, we
expected the Department of Justice to comply with longstanding
criminal procedure rules. To clarify this and to cure any
potential conflicts with Rule 6(e), Ms. Jackson Lee offered an
amendment that would exempt ``those documents the transmission
of which [would] violate Rule 6(e) of Federal Rule of Criminal
Procedure as determined by the Federal officer appointed to
carry out the criminal investigation . . .'' The amendment
failed on a party-line vote of 8-17.
4. CONCLUSION
This leak should be troubling to every member of this
Committee, Republican and Democrat. It compromises our national
security, our intelligence assets and reeks of a Nixon-era
``enemies list.'' This action flies in the face of the
President's promise to ``change the tone'' in Washington; it is
unethical and most likely criminal.
There is a deafening silence from this Congress despite
substantial evidence of stonewalling by the Justice Department.
When it came to 30 year old land deals in Arkansas, the suicide
of Vince Foster, or a private sexual affair, this Congress had
an insatiable appetite for investigation. Now when it comes to
the disclosure of national security secrets by high ranking
White House officials, there is a sudden lack of appetite for
fulfilling our constitutional oversight responsibility. That is
a shame.
John Conyers, Jr.
Howard L. Berman.
Rick Boucher.
Jerrold Nadler.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
Anthony D. Weiner.
Adam B. Schiff.
Linda T. Sanchez.