[House Report 108-413]
[From the U.S. Government Publishing Office]



108th Congress                                            Rept. 108-413
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 3

======================================================================
 
  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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \3\ 7 Deschler's Precedents of the House of Representatives, ch. 
24, Sec. 8, p. 407.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    ``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.
---------------------------------------------------------------------------
    \20\ Charles Doyle, Congressional Research Service Report for 
Congress: Federal Grand Juries: the Law in a Nutshell 1 (Feb. 5, 2002).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \23\ H.R. Rep. No. 108-413 Part I at 4 (2004).
---------------------------------------------------------------------------

                                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
                                                                 -----------------------------------------------
    Total.......................................................              8              17
----------------------------------------------------------------------------------------------------------------

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

                      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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.

                                
