[House Report 109-234]
[From the U.S. Government Publishing Office]




109th Congress 
 1st Session            HOUSE OF REPRESENTATIVES                 Report
                                                                109-234
_______________________________________________________________________
 
    DIRECTING THE SECRETARY OF DEFENSE 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 SECRETARY OF 
 DEFENSE RELATING TO THE DISCLOSURE OF THE IDENTITY AND EMPLOYMENT OF 
                           MS. VALERIE PLAME

                               __________

                             ADVERSE REPORT

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                                   ON

                              H. RES. 417

                                     



                                     

 September 22, 2005.--Referred to the House Calendar and ordered to be 
                                printed
                   HOUSE COMMITTEE ON ARMED SERVICES
                       One Hundred Ninth Congress

                  DUNCAN HUNTER, California, Chairman
CURT WELDON, Pennsylvania            IKE SKELTON, Missouri
JOEL HEFLEY, Colorado                JOHN SPRATT, South Carolina
JIM SAXTON, New Jersey               SOLOMON P. ORTIZ, Texas
JOHN M. McHUGH, New York             LANE EVANS, Illinois
TERRY EVERETT, Alabama               GENE TAYLOR, Mississippi
ROSCOE G. BARTLETT, Maryland         NEIL ABERCROMBIE, Hawaii
HOWARD P. ``BUCK'' McKEON,           MARTY MEEHAN, Massachusetts
    California                       SILVESTRE REYES, Texas
MAC THORNBERRY, Texas                VIC SNYDER, Arkansas
JOHN N. HOSTETTLER, Indiana          ADAM SMITH, Washington
WALTER B. JONES, North Carolina      LORETTA SANCHEZ, California
JIM RYUN, Kansas                     MIKE McINTYRE, North Carolina
JIM GIBBONS, Nevada                  ELLEN O. TAUSCHER, California
ROBIN HAYES, North Carolina          ROBERT A. BRADY, Pennsylvania
KEN CALVERT, California              ROBERT ANDREWS, New Jersey
ROB SIMMONS, Connecticut             SUSAN A. DAVIS, California
JO ANN DAVIS, Virginia               JAMES R. LANGEVIN, Rhode Island
W. TODD AKIN, Missouri               STEVE ISRAEL, New York
J. RANDY FORBES, Virginia            RICK LARSEN, Washington
JEFF MILLER, Florida                 JIM COOPER, Tennessee
JOE WILSON, South Carolina           JIM MARSHALL, Georgia
FRANK A. LoBIONDO, New Jersey        KENDRICK B. MEEK, Florida
JEB BRADLEY, New Hampshire           MADELEINE Z. BORDALLO, Guam
MICHAEL TURNER, Ohio                 TIM RYAN, Ohio
JOHN KLINE, Minnesota                MARK UDALL, Colorado
CANDICE S. MILLER, Michigan          G.K. BUTTERFIELD, North Carolina
MIKE ROGERS, Alabama                 CYNTHIA McKINNEY, Georgia
TRENT FRANKS, Arizona                DAN BOREN, Oklahoma
BILL SHUSTER, Pennsylvania
THELMA DRAKE, Virginia
JOE SCHWARZ, Michigan
CATHY McMORRIS, Washington
MICHAEL CONAWAY, Texas
GEOFF DAVIS, Kentucky
                   Robert L. Simmons, Staff Director
                            C O N T E N T S

                              ----------                              
                                                                   Page

Purpose and Summary..............................................     1
Background.......................................................     2
Executive Communication..........................................     4
Legislative History..............................................     4
Committee Position...............................................     5
Committee Cost Estimate..........................................     5
Oversight Findings...............................................     5
Constitutional Authority Statement...............................     5
109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-234

======================================================================


    DIRECTING THE SECRETARY OF DEFENSE 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 SECRETARY OF 
 DEFENSE RELATING TO THE DISCLOSURE OF THE IDENTITY AND EMPLOYMENT OF 
                           MS. VALERIE PLAME

                                _______
                                

 September 22, 2005.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

    Mr. Hunter, from the Committee on Armed Services, submitted the 
                               following

                             ADVERSE REPORT

                       [To accompany H. Res. 417]

    The Committee on Armed Services, to whom was referred the 
resolution (H. Res. 417) directing the Secretary of Defense 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 Secretary of Defense 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 the resolution not be agreed to.

                          PURPOSE AND SUMMARY

    House Resolution 417, introduced on July 29, 2005, by 
Congressman Rush Holt, directs the Secretary of Defense to 
transmit to the House of Representatives not later than 14 days 
after the date of the adoption of the resolution all documents 
including telephone and electronic mail records, logs and 
calendars, personnel records, and records of internal 
discussions in his possession relating to the disclosure of Ms. 
Valerie Plame as an employee of the Central Intelligence Agency 
during the period beginning May 6, 2003, and ending on July 31, 
2003.
    Clause 7 of rule XIII of the Rules of the House of 
Representatives provides for a committee to report on a 
qualifying resolution of inquiry, such as H. Res. 417, within 
14 legislative days or a privileged motion to discharge the 
committee is in order. H. Res. 417 was introduced and referred 
to the Armed Services Committee on July 29, 2005.
    Under the rules and precedents of the House, a resolution 
of inquiry is one of the means by which the House may request 
information from the head of one of the executive departments. 
It is a simple resolution making a demand of the head of an 
executive department to furnish the House of Representatives 
with specific information in the possession of the executive 
branch. It is not used to request opinions or to require an 
investigation on a subject.

                               BACKGROUND

    On July 14, 2003, syndicated columnist Robert Novak wrote a 
column questioning why Ambassador Joseph Wilson, described as a 
senior Clinton Administration official, had been tasked with 
gathering information for the Bush Administration. Novak wrote, 
``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 his wife suggested 
sending Wilson to Niger to investigate the Italian report. The 
CIA says its counter-proliferation officials selected Wilson 
and asked his wife to contact him.'' \1\ Novak refused to 
identify his sources publicly, but added additional detail 
about how he had learned of Plame's employment in an October 1, 
2003 column:

    \1\ Robert Novak, ``The Mission to Niger,'' Chicago Sun-Times, 14 
July 2003, Editorial section, p. 31.
---------------------------------------------------------------------------
          During a long conversation with a senior 
        administration official, I asked why Wilson was 
        assigned the mission to Niger. He said Wilson had been 
        sent by the CIA's counterproliferation section at the 
        suggestion of one of its employees, his wife. It was an 
        offhand revelation from this official, who is no 
        partisan gunslinger. When I called another official for 
        confirmation, he said: ``Oh, you know about it.'' \2\
---------------------------------------------------------------------------
    \2\ Robert Novak, ``Columnist Wasn't Pawn for Leak,'' Chicago Sun-
Times, 1 October 2003, Editorial section, p. 49.
---------------------------------------------------------------------------
    According to press reports, the CIA referred the matter of 
the leak of Plame's CIA status to the Department of Justice 
after Novak's July column. The possibility existed that the 
revelation of Plame's employment status with the Central 
Intelligence Agency was a violation of the Intelligence 
Identities Protection Act of 1982 (50 U.S.C. Sec. 421). Section 
421(a) provides:

          Whoever, having or having had authorized access to 
        classified information that identifies a covert agent, 
        intentionally discloses any information identifying 
        such covert agent to any individual not authorized to 
        receive classified information, knowing that the 
        information disclosed so identifies such covert agent 
        and that the United States is taking affirmative 
        measures to conceal such covert agent's intelligence 
        relationship to the United States (shall be punished)

    Section 426(4)(A) of the statute defines the term covert 
agent to mean: (1) a present officer or employee of an 
intelligence agency whose identity as such an officer, 
employee, or member is classified information and (2) who is 
serving outside the United States or has within the last five 
years served outside the United States. At this time, it is not 
clear whether Plame is, or was, a covert agent, nor is it clear 
whether Novak's sources have, or had, access to classified 
information. Wilson confirmed his wife worked for the CIA in 
his 2004 book, but most CIA employees are not covert agents.
    According to press reports, the Department of Justice began 
an investigation in September 2003, which the White House 
spokesman confirmed on October 1, 2003. By that time, the 
Justice Department had contacted the White House and asked it 
to preserve and maintain documents under its control. On 
October 3, 2003, a White House spokesperson indicated that the 
Justice Department had asked the White House to produce 
certain, more specific materials as part of the investigation, 
including the kinds of materials that are the subject of H. 
Res. 417.
    On December 30, 2003, Attorney General John Ashcroft 
recused himself from the investigation to avoid an appearance 
of a conflict of interest. Prior to his recusal, the Attorney 
General, in discussions with Deputy Attorney General James 
Comey, concluded that it was appropriate to appoint a special 
counsel from outside the Justice Department's normal chain of 
command to oversee the investigation. With Ashcroft's recusal, 
the special counsel selection fell to Mr. Comey, who selected 
the U.S. Attorney for the Northern District of Illinois, 
Patrick Fitzgerald, as the special counsel. Comey 
simultaneously delegated all necessary authorities to 
Fitzgerald to continue the investigation. As a sitting U.S. 
Attorney, Fitzgerald's investigatory authority exceeds that of 
a normal ``special counsel.'' He does not have to secure 
approval from the Attorney General in making his prosecutorial 
decisions and has all the investigatory tools normally 
available to a U.S. Attorney at his disposal, including the 
authority to interview witnesses, subpoena documents and 
testimony, and convene a grand jury.
    Attorney General Alberto Gonzalez, who succeeded Ashcroft, 
has also recused himself from the investigation. Gonzalez 
oversaw the White House response to requests from Fitzgerald 
investigators while he was White House counsel. With the 
departure of Deputy Attorney General Comey in August 2005, the 
Department of Justice announced that David Margolis, an 
associate deputy attorney general, would oversee the special 
counsel investigation.
    According to press reports, several journalists have 
testified before a grand jury pursuant to the Fitzgerald 
investigation. These reporters include Glenn Kessler and Walter 
Pincus of the Washington Post and Tim Russert of NBC. It is 
unclear if Novak has testified before the grand jury. The grand 
jury also sought testimony from Matthew Cooper of Time Magazine 
and Judith Miller of the New York Times. Both refused to 
discuss certain issues and were found to be in contempt of 
court in October 2004 by Chief Justice Thomas Hogan of the U.S. 
District Court for the District of Columbia. In addition, Time 
was also held in contempt for refusing to produce subpoenaed 
documents. Judge Hogan's decision was upheld by the U.S. Court 
of Appeals for the District of Columbia in February 2005. On 
June 27, 2005, the Supreme Court declined to hear an appeal of 
that decision. Time agreed to produce the subpoenaed documents 
on July 1, 2005. Miller was jailed on July 6, 2005. Cooper 
agreed at the last minute to comply with the court order to 
turn over his notes, e-mails and other documents, stating he 
had received a specific waiver from his source to do so. On 
July 13, 2005, Cooper testified before the grand jury.
    In a submission to the United States District Court for the 
District of Columbia, dated June 28, 2005, Special Counsel 
Fitzgerald informed Judge Hogan, ``[B]y fall 2004, the Special 
Counsel's investigation was for all practical purposes complete 
except for the testimony of petitioners (Miller and Cooper).'' 
In a letter dated September 19, 2005, Mr. William E. Moschella, 
the Assistant Attorney General for Legislative Affairs for the 
Department of Justice informed the committee, ``Mr. Fitzgerald 
has advised that production at this time of the documents 
responsive to H. Res. 417 and . . . any attendant hearings, 
would interfere with his investigation. Accordingly, we request 
that the committee report adversely H. Res. 417.''
    In light of the ongoing criminal investigation, the 
committee concluded that transmittal of the materials 
identified in H. Res. 417 would undermine the investigation and 
possible criminal prosecution of any suspects believed to have 
committed a crime in the Plame matter. Therefore, the committee 
ordered the resolution to be reported adversely.

                        EXECUTIVE COMMUNICATION

                             Department of Justice,
                                Assistant Attorney General,
                                Washington, DC, September 19, 2005.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: We are advised that the Committee plans 
to consider H. Res. 417, which is one of a series of 
Resolutions of Inquiry (House Resolutions 417-420) that, if 
agreed to, would direct the President, the Secretary of State, 
the Attorney General, and the Secretary of Defense to transmit 
to the House of Representatives all documents in their 
possession relating to the disclosure of the alleged identity 
of Ms. Valerie Plame as an employee of the Central Intelligence 
Agency.
    As you know, United States Attorney Patrick Fitzgerald has 
been appointed as Special Counsel to investigate this matter 
and his investigation is ongoing. Mr. Fitzgerald has advised 
that production at this time of the documents responsive to H. 
Res. 417 and the other Resolutions, and any attendant hearings, 
would interfere with his investigation. Accordingly, we request 
that the Committee report adversely H. Res. 417.
    Thank you for your consideration of our views. Please do 
not hesitate to contact this office if you would like 
additional information about this or any other matter.
            Sincerely,
                                      William E. Moschella,
                                        Assistant Attorney General.

                          LEGISLATIVE HISTORY

    As noted above, H. Res. 417 was introduced on July 29, 
2005, and referred to the Committee on Armed Services.
    On September 20, 2005, the Committee on Armed Services held 
a mark-up session to consider H. Res. 417. The committee 
reported adversely the resolution by voice vote, a quorum being 
present.

                           COMMITTEE POSITION

    On September 20, 2005, the Committee on Armed Services met 
in open session and reported adversely the resolution H. Res. 
417 to the House by voice vote, a quorum being present.

                        COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d) 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.

                           OVERSIGHT FINDINGS

    With respect to 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 pursuant to clause 2(b)(1) of rule X, are 
incorporated in the descriptive portions of this report.
    With respect to clause 3(c)(2) of rule XIII of the Rules of 
the House of Representatives and section 308(a)(1) of the 
Congressional Budget Act of 1974, this legislation does not 
include any new spending or credit authority, nor does it 
provide for any increase or decrease in tax revenues or 
expenditures.
    With respect to clause 3(c)(4) of rule XIII of the Rules of 
the House of Representatives, performance goals and objectives 
can not be explained, because the resolution does not require 
any new funding.

                   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. 417 is not a bill or joint 
resolution that may be enacted into law.

                                  
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