Congressional Record: September 30, 2003 (Senate)
Page S12154-S12159
APPOINTMENT OF SPECIAL COUNSEL
Mr. SCHUMER. Mr. President, I came to the Chamber this morning
because I thought we would be on the DC appropriations bill and was
prepared to offer a sense-of-the-Senate amendment to that bill
concerning the appointment of special counsel to conduct a fair,
thorough, and independent investigation into a national security
breach.
I ask unanimous consent that my amendment be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
(Purpose: To express the sense of Congress concerning the appointment
of a special counsel to conduct a fair, thorough, and independent
investigation into a national security breach)
At the appropriate place, insert the following:
SEC. ____. SENSE OF CONGRESS CONCERNING THE APPOINTMENT OF A
SPECIAL COUNSEL TO CONDUCT A FAIR, THOROUGH,
AND INDEPENDENT INVESTIGATION INTO A NATIONAL
SECURITY BREACH.
(a) Findings.--Congress finds that--
(1) the national security of the United States is dependent
on our intelligence operatives being able to operate
undercover and without fear of having their identities
disclosed by the United States Government;
(2) recent reports have indicated that administration or
White House officials may have deliberately leaked the
identity of a covert CIA agent to the media;
(3) the unauthorized disclosure of a covert CIA agent's
identity is a Federal felony; and
(4) the Attorney General has the power to appoint a special
counsel of integrity and stature who may conduct an
investigation into the leak without the appearance of any
conflict of interest.
(b) Sense of Congress.--It is the sense of Congress that
the Attorney General of the United States should appoint a
special counsel of the highest integrity and statute to
conduct a fair, independent, and thorough investigation of
the leak and ensure that all individuals found to be
responsible for this heinous deed are punished to the fullest
extent permitted by law.
Mr. SCHUMER. Mr. President, now I am told the bill has been delayed
because this amendment was going to be offered. I am going to talk
about the amendment and have a dialog with my colleague from
California.
On July 23, I believe it was, when I read the Novak column that named
high administration sources as revealing the wife of Ambassador Wilson,
Ms. Plame, as an agent--I hasten to add, I don't know if she is a
covert agent. That is classified. But that is what was in the paper--I
was outraged. I didn't know who had leaked the information. No idea. I
am not an expert on the internecine rivalries among the various
agencies, but the fact it was done just boiled my blood. So I wrote the
FBI and asked Mr. Mueller to undertake an investigation of this act.
The act, make no mistake about it, is a very serious act. In fact, it
is a crime, punishable by up to 10 years in prison.
Why is it a crime? Why have this body and the other body made this a
crime? For obvious reasons. Our covert agents put their lives at risk
for us every day. They are soldiers just like our brave young men and
women in Iraq and around the globe. And in the post-9/11 world, the
world of terrorism, they are among our most important soldiers because
we have learned intelligence is key. When the name of an agent is
revealed, it is like putting a gun to that agent's head. You are
jeopardizing their life; in many cases, you are jeopardizing the lives
of the contacts they have built up over the decades, and you are
jeopardizing the security of America. So the seriousness of this crime
is obvious.
When, in addition, we learned that it was done in all likelihood for
a frivolous, nasty reason--namely, that somebody was angry at
Ambassador Wilson for speaking the truth, at least as he saw it--I
tended to agree with him. I don't think anybody disputes it. In fact,
the administration has admitted, the yellow cake sale from Niger to
Iraq and the documents were, in fact, forged and the President was
incorrect to use them in his State of the Union Address. This was a way
of getting back at him through his wife or perhaps to cower him to make
sure he didn't speak any further. Nasty. Not just nasty, it was like
kneecapping.
In fact, John Dean, who has been through this, just wrote an article
in something called TruthOut Editorial. The title is "The Bush
Administration"--that is assuming it was done by the administration,
but that is what all the reports are--"Adopts a Worse-than-Nixonian
Tactic: The Deadly Serious Crime of Naming CIA Operatives."
I ask unanimous consent that Mr. Dean's article be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From TruthOut, Aug. 15, 2003]
The Bush Administration Adopts a Worse-Than-Nixonian Tactic: The Deadly
Serious Crime of Naming CIA Operatives
(By John W. Dean)
On July 14, in his syndicated column, Chicago Sun-Times
journalist Robert Novak reported that Valerie Plame Wilson--
the wife of former ambassador Joseph C. Wilson IV, and mother
of three-year-old twins--was a covert CIA agent. (She had
been known to her friends as an "energy analyst at a private
firm.")
Why was Novak able to learn this highly secret information?
It turns our that he didn't have to dig for it. Rather, he
has said, the "two senior Administration officials" he had
cited as sources sought him out, eager to let him know. And
in journalism, that phrase is a term of art reserved for a
vice president, cabinet officers, and top White House
officials.
On July 17, Time magazine published the same story,
attributing it to "government officials." And on July 22,
Newsday's Washington Bureau confirmed "that Valerie Plame .
. . works at the agency [CIA] on weapons of mass destruction
issues in an undercover capacity." More specifically,
according to a "senior intelligence official," Newsday
reported, she worked in the "Directorate of Operations [as
an] undercover officer."
In other words, Wilson is/was a spy involved in the
clandestine collection of foreign intelligence, covert
operations and espionage. She is/was part of a elite corps,
the best and brightest, and among those willing to take great
risk for their country. Now she has herself been placed at
great--and needless--risk.
Why is the Administration so avidly leaking this
information? The answer is clear. Former ambassador Wilson is
famous, lately, for telling the truth about the Bush
Administration's bogus claim that Niger uranium had gone to
Saddam Hussein. And the Bush Administration is punishing
Wilson by targeting his wife. It is also sending a message to
others who might dare to defy it, and reveal the truth.
No doubt the CIA, and Mrs. Wilson, have many years, and
much effort, invested in her career and skills. Her future,
if not her safety, are now in jeopardy.
After reading Novak's column, The Nation's Washington
Editor, David Corn, asked, "Did senior Bush officials blow
the cover of a U.S. intelligence officer working covertly in
a field of vital importance to national security--and break
the law--in order to strike at a Bush administration critic
and intimidate others?"
The answer is plainly yes. Now the question is, will they
get away with it?
Bits and pieces of information have emerged, but the story
is far from complete. Nonetheless, what has surfaced is
repulsive. If I thought I had seen dirty political tricks as
nasty and vile as they could get at the Nixon White House, I
was wrong. The American Prospect's observation that "we are
very much into Nixon territory here" with this story is an
understatement.
Indeed, this is arguably worse. Nixon never set up a hit on
one of his enemies' wives.
leaking the name of a cia agent is a crime
On July 22, Ambassador Wilson appeared on the Today show.
Katie Couric asked him about his wife: "How damaging would
this be to your wife's work?"
Wilson--who, not surprisingly, has refused to confirm or
deny that his wife was a CIA operative--answered Katie
"hypothetically." He explained, "it would be damaging not
just to her career, since she's been married to me, but since
they mentioned her by her maiden name, to her entire career.
So it would be her entire network that she may have
established, any operations, any programs or projects she was
working on. It's a--it's a breach of national security. My
understanding is it may, in fact, be a violation of American
law."
And, indeed, it is.
The Espionage Act of 1917 and the Intelligence Identities
and Protection Act of 1982 may both apply. Given the scant
facts, it is difficult to know which might be more
applicable. But as Senator Schumer (D.NY) said, in calling
for an FBI investigation, if the reported facts are true,
there has been a crime. The only question is: Whodunit?
the espionage act of 1917
The Reagan Administration effectively used the Espionage
Act of 1917 to prosecute
[[Page S12155]]
a leak--to the horror of the news media. It was a case that
instituted to make a point, and establish the law, and it did
just that in spades.
In July 1984, Samuel Morrison--the grandson of the eminent
naval historian with the same name--leaked three classified
photos to Jane's Defense Weekly. The photos were of the
Soviet Union's first nuclear-powered aircraft carrier, which
had been taken by a U.S. spy satellite.
Although the photos compromised no national security
secrets, and were not given to enemy agents, the Reagan
Administration prosecuted the leak. That raised the question:
Must the leaker have an evil purpose to be prosecuted?
The Administration argued that the answer was no. As with
Britain's Official Secrets Acts, the leak of classified
material alone was enough to trigger imprisonment for up to
ten years and fines. And the United States Court of Appeals
for the Fourth Circuit agreed. It held that such a leak might
be prompted by "the most laudable motives, or any motive at
all," and it would still be a crime. As a result, Morrison
went to jail.
The Espionage Act, though thrice amended since then,
continues to criminalize leaks of classified information,
regardless of the reason for the leak. Accordingly, the "two
senior administration officials" who leaked the classified
information of Mrs. Wilson's work at the CIA to Robert Novak
(and, it seems, others) have committed a federal crime.
the intelligence identities and protection act
Another applicable criminal statute is the Intelligence
Identities Act, enacted in 1982. The law has been employed in
the past. For instance, a low-level CIA clerk was convicted
for sharing the identify of CIA employees with her boyfriend,
when she was stationed in Ghana. She pled guilty and received
a two-year jail sentence. (Others have also been charged with
violations, but have pleaded to unrelated counts of the
indictment.)
The Act reaches outsiders who engage in "a pattern of
activities" intended to reveal the identities of covert
operatives (assuming such identities are not public
information, which is virtually always the case).
But so far, there is no evidence that any journalist has
engaged in such a pattern. Accepting Administration leaks--
even repeatedly--should not count as a violation, for First
Amendment reasons.
The Act primarily reaches insiders with classified
intelligence, those privy to the identity of covert agents.
It addresses two kinds of insiders.
First, there are those with direct access to the classified
information about the "covert agents" who leak it. These
insiders--including persons in the CIA--may serve up to ten
years in jail for leaking this information.
Second, there are those who are authorized to have
classified information and learn it, and then leak it. These
insiders--including persons in, say, the White House or
Defense Department--can be sentenced to up to five years in
jail for such leaks.
The statute also has additional requirements before the
leak of the identity of a "covert agent" is deemed
criminal. But it appears they are all satisfied here.
First, the lead must be to a person "not authorized to
receive classified information." Any journalist--including
Novak and Time--plainly fits.
Second, the insider must know that the information being
disclosed identifies a "covert agent." In this case, that's
obvious, since Novak was told this fact.
Third, the insider must know that the U.S. government is
"taking affirmative measures to conceal such covert agent's
intelligence relationship to the United States." For persons
with Top Secret security clearances, that's a no-brainer:
They have been briefed, and have signed pledges of secrecy,
and it is widely known by senior officials that the CIA goes
to great effort to keep the names of its agents secret.
A final requirement relates to the "covert agent"
herself. She must either be serving outside the United
States, or have served outside the United States in the last
five years. It seems very likely that Mrs. Wilson fulfills
the latter condition--but the specific facts on this point
have not yet been reported.
how the law protects covert agents' identities
What is not in doubt, is that Mrs. Wilson's identity was
classified, and no one in the government had the right to
reveal it.
Virtually all the names of covert agents in the CIA are
classified, and the CIA goes to some effort to keep them
classified. They refuse all Freedom of Information Act
requests, they refuse (and courts uphold) to provide such
information in discovery connected to lawsuits.
Broadly speaking, covert agents (and their informants) fall
under the State Secrets privilege. A Federal statute requires
that "the Director of Central Intelligence shall be
responsible for protecting intelligence sources and methods
from unauthorized disclosure." It is not, in other words, an
option for the CIA to decide to reveal an agent's activities.
And of course, there are many good reasons for this--
relating not only to the agent, but also to national
security. As CIA Director Turner explained in a lawsuit in
1982, shortly after the Intelligence Identities Act became
law, "In the case of persons acting in the employ of CIA,
once their identity is discerned further damage will likely
result from the exposure of other intelligence collection
efforts for which they were used."
The White House's Unusual Stonewalling About an Obvious Leak
In the past, Bush and Cheney have gone ballistic when
national security information leaked. But this leak--though
it came from "two senior administration officials"--has
been different. And that, in itself, speaks volumes.
On July 22, White House press secretary Scott McClellan was
asked about the Novak column. Offering only a murky, non-
answer, he claimed that neither "this President or this
White House operates" in such a fashion. He added, "there
is absolutely no information that has come to my attention or
that I have seen that suggests that there is any truth to
that suggestion. And, certainly, no one in this White House
would have given authority to take such a step."
So was McClellan saying that Novak was lying--and his
sources were not, in fact, "two senior administration
officials"? McClellan dodged, kept repeating his mantra, and
refused to respond.
Later, McClellan was asked, "Would the President support
an investigation into the blowing of the cover of an
undercover CIA operative?" Again, he refused to acknowledge
"that there might be some truth to the matter you're
bringing up." When pressed further, he said he would have to
look into "whether or not that characterization is accurate
when you're talking about someone's cover."
McClellan's statement that he would have to look into the
matter was disingenuous at best. This ten-day old column by
Novak had not escaped the attention of the White House.
Indeed, when the equation was first raised, McClellan
immediately responded, "Thank you for bringing it up."
As David Corn has pointed out, what McClellan did not say,
is even more telling than what he said. He did not say he was
trying to get to the bottom of the story and determine if it
had any basis in fact. He did not say the president would not
tolerate such activities, and was demanding to know what had
happened.
Indeed, as Corn points out, McClellan's remarks "hardly
covered a message from Bush to his underlings: don't you dare
pull crap like this." Indeed, they could even be seen as
sending a message that such crimes will be overlooked.
Frankly, I am astounded that the President of the United
States--whose father was once Director of the CIA--did not
see fit to have his Press Secretary address this story with
hard facts. Nor has he apparently called for an
investigation--or even given Ambassador and Mrs. Wilson a
Secret Service detail, to let the world know they will be
protected.
This is the most vicious leak I have seen in over 40 years
of government-watching. Failure to act to address it will
reek of a cover-up or, at minimum, approval of the leak's
occurrence--and an invitation to similar revenge upon
Administration critics.
congressional calls for investigation should be heeded
Senator Dick Durbin (D-IL) was the first to react. On July
22, he delivered a lengthy speech about how the Bush
Administration was using friendly reporters to attack its
enemies. He knew this well, because he was one of those being
so attacked.
"Sadly, what we have here," Durbin told his colleagues,
"is a continuing pattern by this White House. If any Member
of this Senate--Democrat or Republican--takes to the floor,
questions this White House policy, raises any questions about
the gathering of intelligence information, or the use of it,
be prepared for the worst. This White House is going to turn
on you and attack you."
After Senator Durbin set forth the evidence that showed the
charges of the White House against him were false, he turned
to the attacks on Ambassador and Mrs. Wilson. He announced
that he was asking the chairman and ranking member of the
Senate Intelligence Committee to investigate this "extremely
serious matter."
"In [the Administration's] effort to seek political
revenge against Ambassador Wilson," Durbin said, "they are
now attacking him and his wife, and doing it in a fashion
that is not only unacceptable, it may be criminal. And that,
frankly, is as serious as it gets in this town."
The House Intelligence Committee is also going to
investigate the Wilson leak. "What happened is very
dangerous to a person who may be a CIA operative,"
Congressman Alcee Hastings (D-FL), a member of the Committee,
said. And the committee's chairman, Porter Goss (R-FL), a
former CIA agent himself, said an investigation "could be
part of a wider" look that his committee is taking at WMD
issues.
In a July 24 letter to FBI Director William Mueller,
Senator Charles Schumer (D-NY) demanded a criminal
investigation of the leak. Schumer's letter stated, "If the
facts that have been reported publicly are true, it is clear
that a crime was committed. The only questions remaining to
be answered are who committed the crime and why?"
The FBI, too, has confirmed that they are undertaking an
investigation.
But no one should hold their breath. So far, Congress has
treated the Bush Administration with kid gloves. Absent an
active investigation by a grand jury, under the direction of
a U.S. Attorney or special prosecutor, an FBI investigation
is not likely to accomplish anything. After all, the FBI does
not
[[Page S12156]]
have power to compel anyone to talk. And unless the President
himself demands a full investigation, the Department of
Justice is not going to do anything--unless the Congress
uncovers information that embarrasses them into taking
action.
While this case is a travesty, it won't be the first one
that this administration has managed to get away with. Given
the new nadir of investigative journalism, this
administration has been emboldened. And why not? Lately, the
mainstream media has seemed more interested in stockholders
than readers. If Congress won't meaningfully investigate
these crimes--and, indeed, even if it will--it is the press's
duty to do so. Let us hope it fulfills that duty. But I am
not holding my breath about that, either.
Mr. SCHUMER. Mr. President, this is serious stuff, and I was furious.
I had no idea who had done it at that point in time. "High
administration official" can mean a whole lot of things. So I wrote
the letter to Mr. Mueller and publicly called on him for an
investigation.
I learned shortly thereafter that for such an investigation to
proceed, the CIA had to fill out, I think it is, an 11-point
questionnaire about the person named, what they did, and what was
revealed. Of course, last week it came out on television and in the
newspapers that the CIA had asked for an investigation. The logical,
though not certain, conclusion of that, of course, is that they believe
a crime might well have been committed; that Ms. Plame, indeed, was
hurt by the revelation, and that it was illegal to reveal it.
I cannot tell you how many people I have talked with in this body and
throughout the country who are just outraged by this--just outraged.
The attitude that seemed to be indicated by the administration
spokesperson yesterday--oh, we get plenty of leaks, and this is just
one of them, and we investigate all of them--is even more infuriating.
This is not an ordinary leak. I challenge any of my colleagues on
either side of the aisle to bring to me the situation where someone in
a high administration position leaked the name of an agent and
jeopardized their life, their contacts, and America's security. This is
a totally different ball of wax. This is not just a leak. This is a
crime, plain and simple.
Mrs. BOXER. Will the Senator yield?
Mr. REID. Will the Senator yield for a question?
Mr. SCHUMER. Mr. President, I will be happy to yield to my two
colleagues in just a minute.
Even the White House saying, "We will fire whoever did it," is not
sufficient. If you have a company and someone is suspected of murder
and they say, "If we find out they are convicted of murder, we will
fire them," would that be a sufficient enough punishment? Absolutely
not.
What we have here is an attitude: Let's sweep this under the rug,
let's make sure nobody says much about it, and maybe it will go away.
I yield first to my colleague from Nevada.
Mr. REID. Mr. President, I have a question. Will the Senator yield?
Mr. SCHUMER. I will be happy to yield to my colleague from Nevada for
a question.
Mr. REID. Mr. President, I say to my friend from New York, I have
been at a meeting with the Iraqi Governing Council, and I was stunned
when I came back to the Senate Chamber and was advised by my staff that
we are no longer on the DC appropriations bill. We are suddenly in
morning business until our weekly caucuses.
I say to my friend from New York, why in the world would someone be
afraid to vote on an amendment the Senator from New York and others are
going to offer that says: Let's take a look at this; let's find out
what happened? We know there was a crime committed. I don't use those
words often. I know there was a crime committed. It is only a question
of who did it. Why wouldn't our friends on the other side of the aisle
allow a debate on this issue? It is not as if we are taking away heavy
business. We have been vouchered out from doing the DC appropriations
bill.
I say to my friend from New York, what fear does the majority in the
Senate have in allowing an amendment the Senator from New York wishes
to offer? Why can't we debate this amendment?
Mr. SCHUMER. I thank my colleague for the question. I have asked
myself the same question. I was told first that the reason the DC
appropriations bill has not been put forward is that they are afraid of
this amendment. This is a pattern. This morning--
Mr. REID. I say to my friend--pardon the interruption, through the
Chair--afraid of what? Of the truth?
Mr. SCHUMER. That is what the signs seem to indicate. This morning, I
was asked to go on the "Today Show" and talk about this issue. They
asked a whole bunch of Republican Senators. None would appear. They
asked the administration to send somebody. No one would appear. Again,
the attitude seems to be: Let's shrug our shoulders and hope this goes
away.
I will make one other point to our colleague. Our President has made
it his hallmark of defending our troops. That is why we are debating or
we will be debating the money for them. That is why we will be debating
all of this. Every CIA agent is one of our troops, and for the
President to not address this directly, for the President to have his
spokesperson say this is one of a whole lot of leaks, to say if they
find out who it is, they will be fired--well, I just ask my colleagues
to think about this. Let us say they were certain it would cause no
damage to them, that these high administration officials were somewhere
far away. Do my colleagues think we would have the same attitude from
our Commander in Chief, and one who correctly prides himself in
protecting our troops?
So it makes one scratch one's head and say, What are they worried
about? Why will they not get to the bottom of this? This, again, as my
colleague has said, is very likely a crime, and a serious crime.
I read my colleagues what President Bush, Sr., the 41st President,
said about this type of crime. He ought to know because, of course, as
we all know, he was head of the CIA before he was President.
I have nothing but contempt and anger for those who betray
the trust by exposing our sources. They are, in my view, the
most insidious of traitors.
Do we just answer, this is a leak like every other leak when dealing
with traitors?
Mr. REID. Will the Senator yield for one more question?
Mr. SCHUMER. I will be happy to yield for a question.
Mr. REID. I came in past the 11:30 hour. Is it true then that we find
ourselves in a situation, from a parliamentary standpoint, that the
Senator cannot offer his amendment? Is that what the Senator is telling
me?
Mr. SCHUMER. If my colleague from Nevada will yield, that is exactly
right.
Mr. REID. The Senator has worked on this all morning, I know, as well
as yesterday. I had a conversation with him yesterday. We were to go
back into legislative business at 11:30. That right has been taken away
from us by the majority. They will not even let the Senator offer an
amendment in legislative session. Is that true?
Mr. SCHUMER. That is exactly true.
I would be happy to yield to my colleague from California for a
question.
Mrs. BOXER. I thank the Senator so much for yielding. I have a few
questions. What I want to do is make a 4- or 5-minute statement and
then ask three or four questions and hope the Senator can answer them
in his inimicable fashion.
First, I thank Senator Schumer so much for picking up on this issue.
I remember reading about this in July and just scratching my head. I
essentially thought: This cannot be true. I cannot believe that someone
in the White House would reveal the identity of a person who is working
at the CIA undercover. Whether she is an analyst, an operative, or an
agent, it matters not, but certainly someone whose identity had never
been revealed. I thought: This cannot be happening.
To be honest, I should have done more about it, but I did not, and
thank the Senator for writing to the head of the FBI, for whom I have a
great deal of respect, and letting him know this.
Here are my questions: As I look at this, I think, why would someone
do this? Well, clearly the idea behind attacking Ambassador Wilson's
wife was that Ambassador Wilson gave the White House news they did not
want to hear, which was that there was really no proof that Saddam
Hussein was getting nuclear materials from Niger. They did not want
that answer; it was kind of a kill-the-messenger type of response; and
in order to get back at
[[Page S12157]]
him, they out his wife, which is despicable and a crime, but I think it
is about arrogance and it is about intimidation.
We have seen the arrogance, but it is the intimidation factor I want
the Senator to comment on because this is not only about this one
incident--in which clearly Ambassador Wilson was correct, by the way--
but it is a signal that is sent, really, frankly, to everyone in
politics that nothing is off limits if someone crosses us: We will go
after their wife; we will go after their kids.
I have to say to my friend, he is a family man, I am a family woman.
We are in this world--God knows how and why but we are in it--and we
are willing to take the hits and everything else, but the lowest form
of politics is if someone comes after your kids or your spouse. I
resent it, and I want my colleague to comment on those two areas.
I also ask him to comment on a third one, and that is the whole
struggle that women are having in this world of ours to enhance our
careers, to break the glass ceiling, to go into fields that are maybe a
little bit unusual. I do not have the statistics at my fingertips, but
if we look at the number of women who are FBI agents, I can tell my
colleague that it is very few. I used to know the exact number. I do
not want to throw out a number, but it is way less than a third, as I
remember.
So we have a circumstance where there is a woman in a nontraditional
field doing her work, obviously not getting credit for it. She is
working incognito at the CIA, whatever her work is, and she is going up
the ladder. Maybe she has a tremendous future. Well, probably the
future in that field has been harmed, if not totally destroyed, and
maybe her life or other lives that she touched in her work are in
danger.
So we are talking about a number of issues--yes, the crime that was
committed, but the whole idea of intimidation to people who might take
on this administration, the whole idea of going after someone's family
when we know, as public servants, what our families mean to us and how
we protect them from whatever befalls us, the hits, the pain, and other
things that happen. We asked for it. We are in this arena.
So I hope my friend will perhaps talk about that. It is a human
tragedy beyond the crime, and I ask my friend to comment.
Mr. SCHUMER. I thank my colleague for her thoughtful, incisive, and
from-the-heart-type comments. I will comment on them.
The one I would like to focus on a little bit is the intimidation.
The greatness of this democracy through the centuries has been the
structure the Founding Fathers set up which allows debate on the
issues. It is wonderful.
If we had to think of a sentence at the core of America, it might be:
We believe in the competition of ideas, and the best idea will win out.
Free speech, that is the competition of ideas in its pure form. Free
enterprise, that is the competition of economic ideas. Freedom of
religion, that is the competition of spiritual ideas. Democracy is the
competition of political ideas. When we no longer have that, the
democracy frays.
When people are afraid to say what they think, not because their
arguments will be answered directly but, rather, because they will be
hit below the belt, we have the beginnings of the fraying of the
democracy, and that is what is happening.
I hate to say this, but this administration seems to have a peculiar
penchant to attack someone's patriotism when they disagree. I have
basically been a supporter of the President on the war and foreign
policy, but for those who disagree, there has been not just, here is
why you are wrong and let me tell you why--there has been some of
that--but in addition there is an impugning of motive, an impugning of
character, a kneecapping. One of the reasons this issue resonates so is
that it is the worst of that.
Now, about our families, of course, they should be off limits. I will
tell a little story, and then I will yield to my colleague from Iowa.
But the points of my colleague from California are so good.
When I ran for the Senate in 1998, my daughter was starting ninth
grade in a new high school. My worry was she was going to start in
September. If, God willing, I won the primary, the next day I knew that
my opponent, who was known as a hardball political player, Senator
D'Amato, my predecessor--with whom I now get along quite well, I am
happy to say--would go after me. My greatest worry, and the No. 1
reason I debated not to run, was that I thought she would be new in
high school, with a whole bunch of new people, and she was going to a
different high school, not in Brooklyn but in Manhattan, and people
would not want to be friends with her because they would see these
horrible things being said about her father on television. Of course we
talked it over with Jessica, too, who was a mature 10th grader then--
now she is in college and doing great--and we decided to run. As it
turns out, they did run all the nasty ads. The morning I won the
primary I turned on the TV and there they were. It didn't affect her or
her friends. That is the worry we had.
What they are trying to do here is send the message that even your
family is not off limits, perhaps. That is a horrible message. That
frays democracy, just as does the inability to dissent.
I respected Ronald Reagan. When you asked Ronald Reagan something, if
he disagreed with you he would say exactly why: Well, I am against Head
Start because I think parents should be in charge of their children
until they are 5.
All too often in this administration they don't answer directly. In
fact, they will get up and say, "We love Head Start," and then they
will cut the money.
So the candor, the debate on the merits, seems to be going away, and
that worries me about the future of this country. This incident is an
apotheosis of that, both in terms of intimidation, in terms of going
after family, in terms of being malicious, and in terms of saying our
political agenda is more important than the lives of the people
fighting for us--in this case, in the intelligence agencies.
I am happy to yield to my colleague from Iowa for a question.
Mr. HARKIN. I thank my friend from New York for yielding for a
question. I am proud to be a cosponsor of the amendment that the
Senator is trying to offer. I came over to the floor from the
Appropriations Committee meeting to speak on this amendment. Evidently,
I now find out, I understand--am I correct, I ask my friend from New
York, that the majority, Republican side, has extended this period of
morning business which will keep you from offering this amendment? Is
that correct?
Mr. SCHUMER. That is correct.
Mr. HARKIN. Again, I am proud to cosponsor the amendment. I think it
gets to the heart of the matter, and that is to try to get a special
counsel to look into these serious allegations.
I noted earlier the Senator from New York had quoted from former
President George Herbert Walker Bush on leaks. I think there is another
quote from a former Senator, John Ashcroft, now Attorney General, in
which he said:
You know, a single allegation can be most worthy of a
special prosecutor. If you are abusing government property,
if you are abusing your status in office, it can be a single
fact that makes the difference on this.
John Ashcroft, October 4, 1997, on CNN, Evans and Novak, "A single
allegation can be most worthy of a special prosecutor."
As I understand it, the allegation here is not someone has abused
government property, not that someone has engaged in some murky real
estate deal in timberland someplace, this is an allegation that someone
high up in this Government--we don't know where, but someplace high up
in the Government, having access to classified information, leaked to
one or more reporters, columnists, news people, the name of a CIA
agent. That is the allegation, is it not?
Mr. SCHUMER. That is exactly the allegation.
Mr. HARKIN. It would seem to this Senator that allegation is of such
import that everyone here ought to support the Senator's sense-of-the-
Senate resolution. I say to the Senator, I view it with nothing short
of amazement that the other side would want to stop this. I would think
everyone here would want to get to the bottom of this.
I ask the Senator, again, is it the Senator's judgment that somehow
we
[[Page S12158]]
are not being allowed to bring this up for a vote? Does the Senator
intend to pursue this, to make sure we do speak as a Senate on this?
Mr. SCHUMER. I thank my colleague for asking that question. Indeed,
whenever the DC appropriations bill comes up, I am going to bring up
this sense of the Senate.
I thank him for bringing up something else. I don't want this to be a
partisan issue. When I first wrote the Director of the FBI, I had no
idea who put this in there. I just wanted to get to the bottom of it
because I was so outraged at the tactic. What I think we ought to be
doing is getting the special counsel because the special counsel is the
way to certainly remove any appearance of a conflict, and perhaps a
conflict itself. Attorney General Ashcroft, whom you quoted, is known
as a close political ally of the President's. There is an argument that
the Attorney General should be removed from the President and be a
lawyer for the Nation. And there is an argument that the Attorney
General should be a close political ally of the President. Democrats
and Republicans--it has not been a Democratic or Republican issue.
John Kennedy appointed his brother as Attorney General. But when you
appoint an Attorney General who is a close political ally and friend,
and when something sensitive with conflicts of interest occurs, then
you have an obligation, in my judgment, to move for a special
prosecutor. You pay a price, in a certain sense. You gain things by
having a political ally as Attorney General, but you also lose things,
and you lose the guise of independence, the actuality of independence.
My colleague is so right. The best thing that could happen is we pass
this resolution unanimously, we all work together to get a respected
independent counsel--someone like a John Danforth or a Warren Rudman or
a Sam Nunn or a George Mitchell--and then they go forward with their
investigation. I think every one of us on this side of the aisle, as
well as the other, would be content that the chips will fall where they
may so this dastardly crime, and that is what it is, will be exposed.
This idea of not bringing up such a resolution, of not wanting to
debate it, of, again, maybe casting aspersions on the motivation of
those who are for it--we have 14 or 15 of us, and we will have more--is
going to make the American people think: Wait a minute, maybe they are
worried; maybe there is something to hide--which there may or may not
be.
I thank my colleague.
Mr. HARKIN. I thank my colleague for responding. I have a couple more
questions.
I appreciate what the Senator just said. There have been some
allegations made. I don't know whether or not this is some partisan
effort or something like that. We know that a law has been broken.
There is a clear law against leaking the names of our intelligence
agents, and it is punishable by 5 years--or 10?
Mr. SCHUMER. Ten.
Mr. HARKIN. Ten years or a $50,000 fine. A crime has been committed.
I say to the Senator, here we are going on day after day, and there
is a lot of stuff going around the White House and the Attorney
General's office. Is it the judgment of the Senator that this could
really be brought to the forefront rapidly? I say because of a
statement that was made on ABC News--The Note. They had an interesting
question. They asked: Has he [has the President] insisted that every
senior staff member sign a statement with legal authority that they are
not the leaker and that they will identify to the White House legal
counsel who is?
It seems to me the President of the United States can say: Sign this.
Are you the one who called or not? And this will be over with by 4
o'clock this afternoon.
Mr. SCHUMER. I thank my colleague for that. That is what the
President ought to do. This President--I mentioned this earlier to my
colleagues, when I was having a dialog with my colleague from Nevada--
is known for defending our troops. That is what we are talking about
with $87 billion. That is a good thing.
Our CIA agents are our troops, just as our soldiers are our troops.
In fact, after the war, after 9/11 and the global fight against
terrorism, they are even more important because intelligence is so
important.
It seems to me that it would be logical for this President to do just
what the Senator said--to say: You know, yes, we have to have a legal
investigation, but I want to get to the bottom of this immediately
because this conduct is reprehensible.
I don't believe the President was involved in this. I disagree with
him politically. It doesn't seem part of his character. But he should
sure want to get to the bottom. He does not address it at all. His
spokesperson comes out there and says: Oh, these are leaks just like
all the others. We will find out and we will fire him.
One wonders.
Mr. HARKIN. I thank the Senator. One wonders. The President, it seems
to me, would want to get this over with in a hurry by finding out who
the person is who leaked this and let the legal recourse then follow.
But at least expedite this right away and get rid of that person.
The PRESIDING OFFICER (Mr. Sessions). The 30 minutes allotted on this
side has expired.
Mr. SCHUMER. I ask unanimous consent, since there is no one from the
other side, that we be given an additional 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Thank you, Mr. President.
Mr. HARKIN. Mr. President, I know other Senators want to engage the
Senator from New York. I thank him for his leadership on this. I know
of the Senator's longstanding support for our law enforcement and for
making sure that those who violate the trust of public office are
brought to justice. That is what this is about. This is a gross
violation. This is not some little real estate deal someplace.
I ask the Senator: Maybe it is not so much that the wife of Mr.
Wilson is identified, and she may be safe here in the United States. I
don't know about her travels abroad. That may be restricting her
freedom in the future. But what about the contacts she made and her
sources around the world? What is going to happen then? What will
happen to our intelligence agents around the world today if they think
they are going to be "outed" sometime by this administration or some
other administration? What happens to our war on terrorism?
Mr. SCHUMER. I thank the Senator. I so much appreciate my colleague's
intelligence and integrity and passion which he brings to so many
different issues. He is exactly right. Even if this agent should decide
to retire, the damage would be great because other agents would think:
Maybe I will get in trouble. What will I get in trouble for? Speaking
the truth?
We depend on truth in our intelligence services more than just about
anything else. President after President has said one of the keys to
governing well is good intelligence that will tell you when you are off
base as well as when you are on base. It is so serious. The Senator is
exactly right. This transcends any one person. It transcends any
specific person because it goes to the integrity.
I say to my colleague one other thing: From what I understand, our
intelligence services are livid because this happened.
Mr. HARKIN. They should be.
Mr. SCHUMER. I don't know for a fact. But my guess is there was great
debate in the CIA because it was a tough thing to do given that "high
administration sources" were implicated. But the anger among the
Agency is red hot, as I understand it, and with good reason.
I thank my colleague. I would be happy to yield to my colleague from
Florida for a question.
Mr. NELSON of Florida. Mr. President, I wanted to pick up on
something the Senator from New York said. I can best illustrate it with
Veterans Day and Memorial Day when we typically are commending those
young men and women in uniform. We have to modify that now because of
the war in Afghanistan and the war in Iraq. We commend the young men
and women not only in uniform but in the service of their country,
because the CIA was the first to go into Afghanistan. They were all
over Afghanistan before we ever went in with our military forces. They
are
[[Page S12159]]
working in conjunction with our military forces. Indeed, the first
American to be killed in Afghanistan was Mike Spann, a CIA agent.
What we are dealing with, lest folks get this all mixed up with
politics, is a crime of the most serious nature because it jeopardizes
the security of the United States and its people. When someone's
identity is suddenly revealed and is an agent of the U.S. Government,
their life is in jeopardy and the lives of their contacts are in
jeopardy. That is the gravity of this leak. That gets lost in all of
this. He said, she said, and so forth is just branded as politics. But
we are dealing with the lives of people.
As in any normal criminal proceeding, if a violation of law is
thought to have occurred, then let us allow the cops to investigate and
let us bring that person in front of the responsible judicial
tribunals. The question is, which cops will be able to investigate and
get to the truth? If you leave it to the professional law enforcement
people, they will. But isn't it sad that we have to be concerned that
political influence will direct that investigation?
Whatever turn it takes, what the Senator from Florida is standing for
is I know our people want to get to the truth, and it ought to be the
professional law enforcement investigators who determine what is the
truth. That is why I wanted to come and support the Senator.
Mr. SCHUMER. I thank my colleague. Again, he is on the money. That is
all we seek here now--the truth.
The spokesperson for the President, Mr. McClellan, said we are
referring it to the Justice Department and the professionals. If you
look at the chain of command, it goes right up to the Attorney General.
As I mentioned earlier, the Attorney General is a close political
ally with the President. There is nothing wrong with that. That is one
model of the Attorney General. But it certainly sacrifices the
appearance of independence, and perhaps independence itself
particularly goes very high up.
Why we have asked for a special counsel is very simple: It is to
allow professional law enforcement to do the job unfettered so they
know they will not pay a price if they pursue it completely and fully.
That would entail a special counsel of great legal background and
sterling repetition for independence and integrity. I think it would
behoove the administration to do that.
There are all sorts of doubts now. Are they telling the truth about
this, that, or the other thing when it comes to foreign policy? Were we
to appoint a special counsel, people would say: Yes, maybe they are.
But I will say this: The effort to sort of sweep this under the rug
and say, oh, this is just one of the leaks that occurs every day, that
makes me angry, to be honest with my colleague. That is unfair not only
to the CIA agent in question but to the thousands of intelligence
agents across the globe who at this moment, as my good colleague points
out so correctly, are defending just as our soldiers are defending us
and are more needed than ever before.
That is why in the intelligence community there is such livid anger
because this occurred. My guess is--this is just my guess--that is why
Mr. Tenet requested the investigation. My guess is that in his head he
was saying, Oh, boy, this is going to get me in trouble the way, say,
Janet Reno may have gotten in trouble with the previous President, the
Attorney General from the Senator's State. But he knows that the
integrity of the intelligence service is important. My guess is that is
why he did it. Maybe that is why it took a bit more time than I had
imagined when I first requested this on July 24. But he did request it.
Now our obligation to the thousands of brave men and women who are in
our intelligence services and risking their lives is to get to the
bottom of it with a fearless, complete, and thorough investigation.
Mr. NELSON of Florida. Will the Senator further yield for an
additional comment? It is not only, interestingly, those who are
directly in the services of the CIA now, but it is also the retirees.
I will never forget being in an almost deserted embassy in Islamabad,
Pakistan, after September 11. I heard my name being called. I turned
around, and I saw an elderly looking gentleman, and he recalled how we
knew each other back when I was in the House of Representatives.
I said: What in the world are you doing here?
We were getting ready to do a raid in 5 cities simultaneously that
night, of which we got 50 al-Qaida, and we got the No. 3 guy. And, lo
and behold, he was a retired CIA agent they brought back in the
aftermath of September 11, when we were trying to catch up until we
could get the new guys trained. They reached out, and they got the old
guys who had all the knowledge.
Mr. SCHUMER. Right.
Mr. NELSON of Florida. So we are talking about the protection of the
interests of this country, and not only those in the active service
right now but those who are retired who in times of emergency are
called back as well.
Mr. SCHUMER. I thank my colleague. Well said. It is a tribute to how
familiar he is with our intelligence services and how many from his
State serve in the intelligence community.
I was glad to hear, for instance, that these days, on the college
campuses, signing up for intelligence is a coveted thing.
The PRESIDING OFFICER. The 10 minutes have expired.
Mr. SCHUMER. Mr. President, I ask unanimous consent that we be given
another 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Thank you, Mr. President.
There are lines to join the intelligence services, sort of as there
were after World War II, when some of our best and our brightest wanted
to go into our services.
I will tell you, if politics can be played--and those of us asking
for an investigation are not playing politics; it was the people who
outed this agent, if, indeed, that is proven to be true, who were
playing politics--but if that is allowed to prevail, it is going to
hurt our intelligence agencies in many more ways than one.
I thank my colleague.
Mr. President, I would just make two points. No. 1, I will continue
to make an effort to bring up this amendment. It has now been printed
in the Record. I ask my colleagues on both sides of the aisle to read
it. We were judicious in our language. It does not have any kind of
political language or diatribe. It just states the facts. I would hope
we could get colleagues from both sides of the aisle to sponsor it.
And I would hope we could move it forward--move it forward quickly--
as a message because that is all it can be, but as a message to the
President that we need a thorough, complete, and fearless
investigation, and that only a special counsel can do that for us.
With that, Mr. President, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. In my capacity as a Senator from the State of
Alabama, I ask unanimous consent that the order for the quorum call be
rescinded.
Without objection, it is so ordered.
[...]
Congressional Record: September 30, 2003 (Senate)
Page S12160-S12179
DISTRICT OF COLUMBIA APPROPRIATIONS ACT, 2004--Resumed
The PRESIDING OFFICER. The clerk will state the bill by title.
The assistant legislative clerk read as follows:
A bill (H.R. 2765) making appropriations for the government
of the District of Columbia and other activities chargeable
in whole or in part against the revenues of said District for
the fiscal year ending September 30, 2004, and for other
purposes.
The PRESIDING OFFICER. The Senator from New York is recognized.
Amendment No. 1790
Mr. SCHUMER. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from New York [Mr. Schumer], for himself, Mr.
Daschle, Mr. Reid, Ms. Mikulski, Mr. Rockefeller, Mr. Leahy,
Mr. Levin, Mr. Nelson of Florida, Mr. Kennedy, Mr. Durbin,
Mr. Baucus, Mr. Harkin, Mr. Bayh, Mr. Hollings, Mr. Biden,
Mr. Lautenberg, Mr. Sarbanes, Mr. Bingaman, Mr. Kerry, Mr.
Wyden, and Mr. Graham of Florida, proposes an amendment
numbered 1790.
Mr. SCHUMER. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To express the sense of Congress concerning the appointment
of a special counsel to conduct a fair, thorough, and independent
investigation into a national security breach)
At the appropriate place, insert the following:
SEC. ____. SENSE OF CONGRESS CONCERNING THE APPOINTMENT OF A
SPECIAL COUNSEL TO CONDUCT A FAIR, THOROUGH,
AND INDEPENDENT INVESTIGATION INTO A NATIONAL
SECURITY BREACH.
(a) Findings.--Congress finds that--
(1) the national security of the United States is dependent
on our intelligence operatives being able to operate
undercover and without fear of having their identities
disclosed;
(2) recent reports have indicated that administration or
White House officials may have deliberately leaked the
identity of a covert CIA agent to the media;
(3) the unauthorized disclosure of a covert intelligence
agent's identity is a Federal felony; and
(4) the Attorney General has the power to appoint a special
counsel of integrity and stature who may conduct an
investigation into the leak without the appearance of any
conflict of interest.
(b) Sense of Congress.--It is the sense of Congress that
the Attorney General of the United States should appoint a
special counsel of the highest integrity and statute to
conduct a fair, independent, and thorough investigation of
the leak and ensure that all individuals found to be
responsible for this heinous deed are punished to the fullest
extent permitted by law.
Mr. SCHUMER. Mr. President, I yield to my colleague, our leader from
South Dakota, as much time as he wishes.
Mr. DASCHLE. Mr. President, I thank all of those involved in the
discussion and the agreement we have just reached procedurally. This is
an important issue and it deserves the consideration of the Senate.
I want to especially acknowledge the leadership Senator Schumer has
shown on this matter, and I expressed the gratitude of our caucus to
him for providing this legislative leadership as we consider what to do
in this particular case.
I think there are several facts we know for sure. We know the law was
violated. We know what the law says with regard to violations of this
magnitude. We know the chilling effect it has on our intelligence-
gathering capability and on personnel involved in the front lines with
regard to intelligence-gathering responsibilities.
We know, if we can believe the reports that have already been printed
and reported, what motivated someone in the White House or someone in
this administration was retaliation, retribution for being critical of
the administration. Those things we know.
What we don't know is how it happened. What we don't know is who is
responsible. What we don't know is whether or not the perception that
the Justice Department can investigate this independently, objectively,
and thoroughly is something we can answer today. I would say the answer
is no. It would be very difficult to put John Ashcroft in the position
of investigating the very people who hired him for the job. We no
longer have the independent counsel law. That has expired. I am on
record as having said I support the expiration of the independent
counsel law because of the abuses that I believe have occurred. What we
do have is an independent prosecutor set up by regulation throughout
the Justice Department to create more of an independent review, an
outside analysis of all of the outstanding questions regarding this
particular case.
So that is really what the Senator from New York is saying. Because
the law was violated, because of the perceptions created about the
inability of this Attorney General to create an independent, thorough
investigation, we have no choice. We have no choice but to encourage
and to demand that a special counsel be appointed.
Mr. President, I don't know that there could be anything more
egregious--in fact, I thought President Bush's father said it about as
well as anyone can.
Anyone who is guilty of doing something such as this is what
President Bush said, an insidious traitor. I believe those are strong
words, because they deserve the kind of repudiation that words such as
that connote.
The only way we can ensure that those responsible for insidious acts
involving the very essence of our ability to stay strong is to ensure
that when we pass laws involving violations, we deal with them
effectively and directly, regardless of who it may be.
Our country is based on the premise, on the foundation, of the rule
of law. There can be no respect for the rule of law if laws as
essential to our national security as this are violated and there is no
followup, no responsibility, no actions taken.
I do not care how one connotes the importance of this law, one cannot
minimize its impact in this country today, especially now. So all that
the distinguished Senator from New York is saying and what many of us
are saying with him is let us uphold the law; let us say, as we demand
of others that they respect the rule of law, that we set the example,
and that in encouraging the rule of law and respecting the
extraordinary consequences of the law those who violate it are held
accountable.
I hope this Congress will act unanimously in this sense of the
Senate, in this statement of purpose that the Senator from New York is
offering today. Let us simply say with one voice that there can be no
excuses, there can be no explanation, there can be no other option than
pursuing the law vigorously. The only way to do that is to recognize
the importance of what the Justice Department itself recognized, that
there are times when conflicts of interest stand in the way of pursuing
justice effectively. In those times, the only option we have available
to us is the creation of an independent counsel.
In essence, that is what we are proposing today. I strongly support
the letter as well as the spirit and the intent of the resolution, and
I hope my colleagues will do so as well.
I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, first, let me thank our leader from South
Dakota for his right-on-the-money words as well as his leadership on
this issue with so many others. I think I speak for every Member on our
side when I say we are proud to follow his leadership, and every Member
of the
[[Page S12161]]
Senate, that he is just a fine leader and fine man.
This is a sense-of-the-Senate resolution. As our distinguished
Democratic leader stated, it simply says that the rule of law should be
upheld. When I read in the Novak column that an agent was outed, I was
just furious. My first reaction was to call the FBI and send them a
letter asking that there be a thorough investigation. I was told that
before anything such as this could happen, the CIA had to answer 11
questions on a certain form that would show the law was--and I am not
sure of the standard; it might be probable cause but violated, or at
least the significant possibility of it being violated. Evidently, last
week the CIA sent those 11 pages back and asked for an investigation.
There are so many points to make, and I will make a few. First, the
dastardliness of this act; it is despicable. I have been in Washington
22 years. I have never seen anything quite like this. To reveal the
identity of an agent, or an analyst, the law does not matter--and I
know that it was said on television yesterday by Mr. Novak, well, she
was not an agent, she was an analyst and therefore it does not matter,
but the law is very clear, and if someone is covert, a member of the
CIA, and their identity is revealed, that is a crime.
Furthermore, we do not know if she was an analyst or an agent. If we
are going to believe Mr. Novak on this part of it, then maybe we should
believe him on all the rest of it. Everyone would agree that some high
administration officials did a very terrible thing. To take this agent,
analyst, this covert individual, who has served their country, and
expose them, endangers them, endangers their sources and their
contacts. As my good colleague from California has said, it puts a halt
on their career and endangers the security of this country.
Furthermore, we have always felt that our intelligence agents are on
the front lines. I was told earlier today by my colleague from Florida,
Mr. Nelson, that the first American killed in Afghanistan was not a
member of the Armed Forces but a member of the CIA. In a post-9/11
world, our intelligence sources are so important. What does it say to
all of those thousands of men and women who serve us that if they tell
the truth and somebody high up does not like it either they or their
family can be outed? It goes to the very heart of what that Agency is
all about. It is no wonder that the CIA, its employees from top to
bottom, were just furious about this activity.
I do not know where this will lead. Rumors abound. If the Washington
Post is correct and six media outlets were called, it is going to be
pretty hard to keep it a secret as to who made the calls, where and
when, but that is not the point. The point is, this crime demands a
solution. This outrageous act demands justice.
To hear Mr. McClellan of the White House say yesterday, first, there
are 50 leaks every week, belittling this, made my blood boil. This is
not a typical leak. To reveal a covert operative's name is a crime, not
a leak.
Then second, to say, if we find them, we will fire them, well, that
is like saying someone in your company is a murderer and all that
should happen is they should lose their job. There was a serious crime
committed. What makes the crime worse is that it appears on its surface
it was committed for reasons of malice, for reasons of stifling debate
and dissent. As somebody who has generally been supportive of the
President in Iraq, I find it just as outrageous as somebody who might
be opposed.
Mrs. BOXER. Will the Senator yield for a brief question?
Mr. SCHUMER. I would be happy to yield to my colleague.
Mrs. BOXER. The reason I am doing this is because I am unable to stay
and speak on the Senator's amendment but I wanted to make a couple of
comments and ask a question, if I can, through the Chair.
First, I again thank Senator Schumer for his leadership on this. We
spoke about it this morning, the fact that he took action back in July
and wrote to the head of the FBI. He knew immediately that this was
something outrageous, and I do thank him for that.
I am also very pleased that we are able now to have the Senator's
amendment offered, to which I am a cosponsor. If I am not, I ask
unanimous consent to be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. The fact is, we now have the DC bill in front of us and
we have a legislative way to express ourselves. The thing I want to
point out is now there is an attempt to try to demean this incident by
saying that the fact that a CIA analyst or agent--we are not exactly
sure--was revealed is not such a big deal and does not have much merit
to it. I know my friend spoke about that, but I want to pursue a couple
of questions.
Is it not the fact that the head of the CIA himself decided this was
so egregious, to reveal the identity of Ambassador Wilson's wife, that
the head of the CIA, who really serves at the pleasure of President
Bush, asked for an investigation by the Attorney General? Is that
correct?
Mr. SCHUMER. I would assume that is correct. The bottom line is the
CIA has asked for it. This is a very sensitive matter. He is the head
of the CIA, so I think it is a pretty good assumption that he asked for
it. I think another assumption, that he realized this would ruffle a
whole lot of feathers at 1600 Pennsylvania Avenue, at the White House,
in the administration, is true. But from what I am told by sources who
know what went on there, the obligation to the men and women in the
intelligence service transcended any feathers that might be ruffled. It
is a pretty courageous act.
Mrs. BOXER. Yes. I just want to point out that to attempt to minimize
this crime by saying this woman was probably an analyst and not an
agent is unbelievable to me. The fact is, whether she was an agent or
an analyst or anything else, was she not undercover? Every time I see
her on TV, they cover up her face. I say to my friend, let's not get
into the sideshow about was she an analyst or was she an agent. The
fact is, she was in a covert situation, was she not, and it is safe to
say that the reason her face is covered up is that she was undercover;
the reason the CIA asked for an investigation is that they believe a
law may have been broken because she was undercover.
I want to make that one point, in addition to the points we made this
morning, which is that I hope my colleagues will vote for this
amendment. I hope my colleagues on the other side will not have a dual
sense of when an independent counsel should be appointed: There is a
real estate deal somewhere; there is an independent counsel. There were
no lives on the line there. This is a situation where someone who is
undercover has been revealed as a way to get back at her husband who
happened to bring back the news that the administration didn't want to
hear--that in fact Iraq was not purchasing, at least in this particular
case, from Niger any nuclear materials.
We have a circumstance where, faced with this, the new defense is:
She was just an analyst; she wasn't an agent. I want to make the point,
this woman was in the CIA. Her career has no doubt been destroyed. She
was undercover. We do not see her face on TV. The fact is, the CIA
asked for an investigation. And what my friend is saying today is, we
need a more independent investigation. We don't want politics to play a
role in this investigation. We want to remove it, even though the
Attorney General will still be in charge of an independent or a special
counsel, as we call it. A special counsel will have a little more
independence than just getting it over to the Justice Department.
Mr. SCHUMER. I thank my colleague.
I wish to clarify a few points that should be made to everyone. The
reason there is a debate about an agent or analyst is that is what Mr.
Novak said on one of the shows, that is what we were told earlier
today.
I have something from CNN.com. They say that other sources told CNN
on Monday--yesterday--that Plame was an operative who ran agents in the
field. Let me repeat that. Other CIA sources told CNN on Monday that
Plame was an operative who ran agents in the field. I don't know if
Novak is right or if these other sources are right; that is the very
point. The issue of whether she was an agent, an operative, or an
analyst is beside the point. The law was broken.
[[Page S12162]]
The law is clear, and while it says covert agent but defines agent as
an officer--I am paraphrasing--employee, present or retired, of an
intelligence agency whose identity has not been previously publicized,
revealed, that is the point.
Once again, my colleague from California makes a very astute point.
No one is revealing the face of this person. No one was revealing the
name of this person. The bottom line is it is quite clear the law was
broken. The only question we don't know is who broke it. What we are
trying to do--and again the Senator from California is exactly right--
is keep the politics out of this issue.
The idea that when a law is broken and someone calls for a full and
thorough investigation, and the mechanism to do it, is politics is
absurd. I will tell you what politics is--despicable and nasty
politics. It was revealing this person's name because they did not like
what her husband said. That is the politics of this issue.
Mrs. BOXER. Mr. President, will my friend yield further?
Mr. SCHUMER. I will be happy to yield.
Mrs. BOXER. I wish to make a point to underscore this discussion.
This leaking of a name is, on its face, a crime. The person who did
this deserves to be punished because to think that someone would punish
someone's family--they didn't like what Ambassador Wilson said: How can
we hurt him? How can we sting him? How can we burn him? We will hurt
his wife. We will out her; that will ruin her chances. And that will
send a chilling message to Ambassador Wilson: A, be quiet, maybe this
will go away; and, B, it sends a chilling message to everyone. That is
why what you are doing is so important.
This is an incident that cannot be swept under the rug. Whether it is
a Democratic administration or a Republican administration matters not
because this endangered someone, and it sends a chilling message to
anyone who might bring bad news to this administration, who might
disagree with their policy in Iraq.
I say to my friend, he is right on target. If this does fail in a
party-line vote--and I pray it does not, but if this fails in a party-
line vote, unfortunately, this will become a bigger and bigger
political issue because I, for one, am not going to stop focusing
attention on it. As a woman who has all my life been in jobs that are
perhaps a little bit different than other women, I have tried to say we
can do it. This attack on this woman who was on the ladder, obviously,
in the CIA, was not only a crime, it was unjustified, and it sends a
terribly chilling message to other women out there that you can do the
greatest job in the world but, gee, if you are married to someone who
might say something controversial, you are going to be outed.
What about the message--I close with this--it sends to other agents
out there, other agents who may be working on issues and bringing back
information that the administration doesn't want to hear because maybe
it does not comport with what they want to be known as the facts? What
kind of message does this send? Are they going to take the risks? As
Senator Harkin said, we are going to win this war against terrorism by
the quality of our intelligence. And here we have the White House
itself that says it is leading the fight against terrorism. We stood by
their side continually on this, as we should. Here they are, in
essence, outing someone who could be working in ways to save our people
from another terrorist attack, from al-Qaida, and whatever else.
I am so pleased my friend has been so stalwart on this issue.
Anything he needs from this Senator from California to help him, I
remain available to do whatever I can do to bring justice to this
family.
I yield back the time.
Mr. SCHUMER. I thank my colleague from California for her strong,
intelligent, and heartfelt words.
I would like to make just one other point, and this is a very
important point I have not talked about before, so I hope my colleagues
will listen. People ask, Why ought there be a special prosecutor? Why
not let Justice do the job?
There are obvious reasons. Attorney General Ashcroft is a close
political associate of the President's. If this goes high up into the
White House, there is obviously the appearance of a conflict, if not a
conflict itself. There is nothing wrong with the President appointing a
close political associate as Attorney General. Some have. John Kennedy
did. Bill Clinton didn't. The other model is to appoint someone at some
distance, someone removed, a professional law enforcement person. But
when you appoint someone who is close, you lose any vestige of
independence when something sensitive comes up, making the need for
special counsel more important.
A special counsel is not a runaway counsel. The independent counsel
law expired because people were worried about that. It is still
appointed by the Attorney General. The differences are threefold. No.
1, the day-to-day running of the investigation is not under the
Attorney General or the staff that is directly under him with the chain
of command going up.
Second, a very important prophylactic measure: Anytime the Attorney
General should reject the request of the special counsel--to subpoena
someone or bring someone to a grand jury or file some charges--a report
has to be made to Congress. That is an extremely important and
prophylactic measure.
Third, special counsel, when they have been appointed--and by the
way, Archibald Cox and Leon Jaworski, people like them, fell under a
law very similar to the President's special counsel law because that
was before the independent counsel was allowed and after 1999. After it
expired, Justice passed this regulation allowing special counsel again.
But they have stature. They are not going to be pushed around. Everyone
will see who is appointed.
Obviously, if the Attorney General should appoint someone who doesn't
have the stature, doesn't have the political independence, they will
not be given the respect that someone of stature and independence
would. But because it is public, that is generally what happens. A
Warren Rudman or a John Danforth or a George Mitchell or a Sam Nunn
would be ideal type candidates as independent counsel.
Let me show an example. This is the point to which I want people to
pay attention. We just had an example of why we need a special counsel.
This was reported, as I am told, by Mr. McClellan. We learned this
morning that the White House Counsel, Mr. Gonzales, had sent an e-mail
to all White House employees to preserve all their records, their logs,
their e-mails and things like that. It was a good thing to do.
But what Mr. McClellan just confirmed is that he was asked by the
Justice Department to do it last night. He said: Can I wait until the
morning? And the Justice Department said yes.
Did anything happen between last night and this morning? I don't
know. Nobody knows. You can be sure, if it was a special counsel, that
ability to delay for several hours the sending out of this very
important e-mail wouldn't have happened, or it only would have happened
with an extremely good reason.
But when you don't have a special counsel, when the White House
Counsel makes the request, it is given the benefit of the doubt.
Frankly, at least from the allegations we hear the White House Counsel
is in the same place as the person or persons who did this dastardly
act. So if there was ever an example of why we need a special counsel,
it just came out when Mr. McClellan told us about this delay in sending
out the e-mail. For all we know, and this is just hypothetical, rumors
went throughout the White House that there will be an e-mail this
morning--and this is just hypothetical and, hopefully, it didn't
happen--but maybe that somebody who did it didn't save what they were
supposed to save, inadvertently threw them out. Who knows?
Again, if the special counsel were there, it is likely not to have
happened. And if it did happen that the delay was sanctioned, people
would have more faith that there was a justification for it.
So we need a special counsel. It is not a perfect mechanism, but it
is the only mechanism available that has some semblance of
independence, of fairness. Along with my 15 cosponsors, we are
requesting a sense-of-the-Senate resolution that that be done.
I remind my colleagues, this is a sense of the Senate. It is
basically a
[[Page S12163]]
sense of the Senate that in a very real sense says: Do you want to get
to the bottom of this, and do you want to do it fairly and not
politically? It doesn't require it to happen.
Excuse me, we have now 22 cosponsors.
It doesn't require it to happen, but at least we go on record, this
body, as saying there ought to be a full, fair, and independent
investigation--and a fearless investigation, I would add, an
investigation that will go wherever it leads.
I repeat, I have no idea who did this. There are names bandied about.
If it is true that six people in the media were called, this is not
going to be a top secret, even though the media people will not want to
reveal that they were called because of their sources. But a special
counsel should be able to get to the bottom of it. Any counsel should
be able to get to the bottom of it if, A, they really want to; B, they
don't fear getting to the bottom of it; and, C, they are not told by
somebody else not to, subtly or otherwise.
I guess that is another point I would make. What this case is about
in many ways--not every way, there are so many ramifications to it
already--the reason it has resonance is not only that what was done was
despicable, but it relates to a methodology in Washington that has
become too current lately, which is knee-capping people with whom you
don't agree instead of having an open debate, saying you think this; I
think that; let's see what the people decide. To call into question
their character or patriotism or anything else--we have seen that in
many different areas in the last year or two.
So it has tremendous resonance, but ultimately one thing this is
about is the ability to tell the truth without being hurt for telling
that truth, hurt professionally. Isn't that, indeed, the reason we need
a special counsel? If there is a career diplomat in the Justice
Department who is doing this investigation, maybe he or she, even if
told nothing, will say: Hey, if I bring this all the way to the top
where I think it ought to go, it might hurt my career. Who knows? With
the special counsel, if it were a John Danforth or a Sam Nunn, they
would not worry about their career. Their integrity is rock ribbed, and
they will take it where it leads.
I hope we will allow a vote on this amendment. I don't know what the
other side is afraid of, or whoever is afraid, to not allow a vote on
this amendment. It is a simple sense-of-the-Senate resolution, and I
would argue it will be more foretelling if this amendment is being
blocked from being voted on. It will be very revealing if this
amendment is blocked because it is saying somebody, somewhere, is
afraid of where this investigation would lead.
I think if a point of order is raised and not overturned in any way,
then--I guess it cannot be overturned. If the point of order is raised
and a vote is prohibited, it is going to say something. It is going to
say those who raise the point of order are afraid of where the truth
may lead. That is one of the things we all worry about.
Once again, I say to my colleagues that the very fact that the e-mail
which went out this morning was asked for last night, and delayed for
several hours, raises questions. They may be answered; they may not be.
But that is the kind of question that will come up every day in an
investigation if we do not have a special counsel.
I thank my colleagues from South Dakota and California and the so
many others who spoke this morning--the Senators from Nevada, Iowa, and
Florida.
All I can say is for the sake of this country, for the sake of
fairness, and for the sake of the continuing rebuilding and the
viability of our intelligence services, I hope this amendment passes. I
hope no one will block it on a parliamentary procedure called "a point
of order." I hope we will get to the bottom of this dastardly act and
find out who put the integrity of the intelligence services and
possibly the lives of people on the line for simply the purpose of
malice or the purpose of preventing the truth from coming out.
I am going to yield as much time as he would like to my colleague
from Illinois, a member of the Intelligence Committee.
The PRESIDING OFFICER (Mr. Crapo). The Senator from Illinois.
Mr. DURBIN. Thank you, Mr. President. I thank Senator Schumer for his
leadership on this issue.
This is not a new issue. This article was written by columnist Robert
Novak back in July. It is interesting at the end of September and the
beginning of October that it finally surfaces and is receiving the
attention it deserves.
What Senator Schumer is asking is for the Senate to go on record in
calling on the Bush administration to appoint a special prosecutor,
someone who will be independent enough to ask the hard questions and
try to find out who was the source of this very serious security leak.
Keep in mind what happened here. A decision was made by someone in
the administration--perhaps in the White House--to disclose the
identity of a woman working for one of our intelligence agencies. In
and of itself, it doesn't sound like much to an outsider. But for many
of the people working for those intelligence agencies in a covert
status, the fact that their identity is not known is an important part
of their job and an important part of their survival. As a result, the
disclosure of the identity of such a person is a Federal felony, the
most serious crime you can commit. We believe it undermines our
intelligence-gathering capability and can literally endanger the lives
of innocent, hard-working, patriotic Americans to knowingly disclose
their identity. In this case, a decision was made within the Bush
administration to disclose the identity of this woman and jeopardize
her future, her career, and maybe even her life. That is as serious as
it gets in this business.
We can remember back in the Nixon administration the enemies list
that was generated--people the Nixon administration decided did not
share their views on foreign policy or domestic policy. They made a
long list of columnists and individuals across America who were their
enemies. They looked for ways to hurt them.
In this situation, we have the equivalent of an enemies list in the
Bush administration--a decision by someone at the highest level of the
administration to declare that Ambassador Joe Wilson and his wife were
enemies and at any cost they had to be silenced; they had to be
stopped. What was the administration trying to silence? They were
trying to silence the fact that they sent Ambassador Joe Wilson, a
former Ambassador in the Clinton administration, on a special detailed
assignment to determine whether some of the statements the
administration had made about the dangers of Iraq were true,
particularly the statement which was made in the President's State of
the Union Address that there had been fissile material that could be
used to make nuclear weapons sent from the tiny African nation of Niger
to Iraq.
Of course, the reason that was important was because it was the first
issue raised by the Bush administration as to why we had to invade
Iraq. If they had nuclear weapons and the capacity to build them in
short order, they would be a threat not only to the region and to the
world, and so we had to stop Saddam Hussein in his tracks.
Evidence of the movement of this enriched uranium or fissile material
from Africa to Iraq was critical. The President of the United States
thought it was so important that he made reference to it in his State
of the Union Address to the American people.
When Ambassador Joe Wilson was sent to Africa and began
investigating, he returned and reported to the Bush administration they
were wrong. In his estimation, there was no evidence that this ever
took place. In fact, as I stand here today, President Bush has
apologized to the American people for including this statement in his
State of the Union Address, and there is literally no evidence that
this took place.
Ambassador Wilson did his job, took his assignment for the Bush
administration, did it honorably, and came back and reported to them
what he found. But there were some people in this administration who
didn't like his report. They didn't want to know the facts. They had
already created a scenario of nuclear weapons, and Joe Wilson's report
wasn't consistent with it. They went forward and allowed this unproven
theory to fester and grow as they started talking about the danger of
Iraq to the world.
[[Page S12164]]
Finally, Ambassador Joe Wilson, in desperation, published an article
in a leading newspaper and said, I have to tell the truth. I went to
Africa on an assignment from the Bush administration. What I found was
inconsistent with what they said to the American people.
This was an amazing development--an amazing disclosure. But I met
with Ambassador Wilson, and he felt he had no other choice. His
integrity was on the line. He decided to tell the truth to the American
people. But because he did and because that truth brought embarrassment
to this administration, they struck back. But they didn't strike at
Ambassador Joe Wilson. They went after his wife, a professional
intelligence agent working in a covert capacity. That is what this is
all about.
Who was behind this? I don't know. I do not know if it reaches to the
White House. I can't say. Mr. Novak has only said "administration
sources." But what Senator Schumer brings to the floor today to really
confront is the fact that we cannot honestly expect Attorney General
John Ashcroft to really treat this case in the manner it deserves to be
treated for the good of our intelligence gathering, for the integrity
of the people who work at those agencies and, frankly, for justice to
be served.
Last year when I served on the Senate Intelligence Committee and
there was a disclosure of some classified information, Vice President
Cheney and Secretary Rumsfeld were adamant and vocal that the leaking
of classified information, particularly in the runup to the war in
Iraq, was absolutely intolerable and unacceptable. No one questions
that premise. I certainly don't, as a member of the Intelligence
Committee. When this piece of information was leaked, they turned on
the Intelligence Committee and said we want to know which Senator--
assuming it was a Senator, and it could have been staff or someone
else, for that matter--which Senator leaked the information.
Do you know what they did next? They sent an FBI agent to my office
and to the office of every Senator on the Intelligence Committee--this
Ashcroft Department of Justice and the Bush administration. They asked
me if I would submit to a polygraph--a lie detector--to determine
whether I was the one who leaked the information. I didn't leak the
information. But I also feel, as most people do across America, that
those polygraphs are notoriously inaccurate. Most States don't even
recognize them in their courts. I have never counseled a client in my
legal practice to take one. I just do not think they can be trusted.
I said no, I am not going to submit to a polygraph. The next thing
you know is that in the course of my reelection campaign it was
disclosed to the public that I had turned down the request of the FBI
agent for a polygraph test. I explained it as best I could to the
people of Illinois. They obviously accepted it, and gave me a chance to
serve again in the Senate.
But isn't it interesting that this Bush administration and their
Department of Justice, which obviously believes so passionately in
polygraph tests, now is in a predicament where if they are going to
investigate this leak, if they are going to try to find out which
person in the administration is responsible for calling Robert Novak
and disclosing this, they are frankly going to be in a position where
they have to ask for polygraph tests.
You have to ask the obvious question. Is Attorney General John
Ashcroft willing to ask Karl Rove to submit to a polygraph and tell the
people whether he says yes or no? You could go through the list of
potential people from the administration who need to be asked. I think
the answer is obvious. They are not going to do that. Attorney General
Ashcroft is not likely to ever do that.
What Senator Schumer and myself and others are saying is now is the
time to acknowledge the obvious. This administration is not up to the
task of dealing with such a disclosure so sensitive and so important at
the highest level of Government. It is time to give this responsibility
to a special prosecutor, someone outside the administration, with no
conflict of interest.
I will tell you, I did not think the day would come, or come soon,
when I would come to the Senate floor and call for a special
prosecutor. The gross abuse of independent prosecutors during the
Clinton era really, I guess, satisfied me once and for all that you
have to be extremely careful to put that much power in one individual.
But I do not know any other way out here.
I cannot imagine that leaving this in the hands of Attorney General
Ashcroft and the Department of Justice is really going to give us a
satisfactory conclusion to these critical and important questions: Who
was it who decided to put Ambassador Wilson's wife on this hit list, on
this enemies list? Who was it who was willing to risk prosecution of a
Federal felony to embarrass her and compromise her as an analyst or an
agent for America? Who was the person who decided that all bets were
off and no holds were barred when it came to going after critics of the
administration?
Those are hard, tough questions, questions this President would not
want to face, no President would want to face, and certainly questions
not likely asked or answered if it is going to be done within the
administration.
So I certainly support my colleague from New York. I join with others
who believe the appointment of a special prosecutor is the only way to
serve the needs of justice and to do it in a way where there is a
credible outcome.
[...]
Mr. REID. Mr. President, I yield myself such time as I may consume.
I ask the Chair to advise me when 3 minutes remain.
Mr. President, after I went home last evening, I couldn't stop
thinking about a statement Senator Harkin had made regarding the leak
of classified information about the identity of an undercover CIA
agent. Like Senator Harkin, I also remember as a boy seeing those signs
that warned: Loose lips sink ships. Our Nation was at war then. Even
though the war was far away, every citizen was constantly reminded that
there might be spies among us and that the wrong information in the
wrong hands could cost American lives. So here it is, 67 years later.
Once again we are at war and, sadly, it seems that the wrong
information has been passed into the wrong hands--not by our enemies
but by someone who works at the White House.
By now I think we are all familiar with what happened. On July 14,
the political columnist Robert Novak, who I consider a friend and like
very much, disclosed the identity of a covert CIA operative. He wrote
that the information was given to him by "two senior administration
officials." Yesterday the Washington Post reported that before Mr.
Novak's column appeared, two top White House officials had called at
least six journalists, revealing the name of this undercover CIA agent.
The reason, of course, for the leak has been well established. It was
to get back at the husband of the agent. He is Joseph C. Wilson, former
U.S. Ambassador, who had publicly challenged President Bush's claim
that Iraq tried to purchase uranium from Africa. In retaliation for Mr.
Wilson's telling the truth as he saw it, two White House officials
apparently blew his wife's cover and, in the process, they threatened
our national security. If you think that is overreacting, remember the
old warning: Loose lips sink ships. Because that information was
leaked, this agent's ability to gather intelligence has been destroyed
and her safety has been put at risk.
Even more important, the leak of that sensitive information has
jeopardized the safety of every person in the
[[Page S12166]]
world who had cooperated with her. Any person who was a known associate
of this agent will now be suspected of cooperating with the CIA. Maybe
even some innocent friend would be so thought. We might never know how
many people have been tortured or maybe killed as a result of this
leak.
As terrible as that scenario is, it is not the worst consequence of
this leak. This leak of classified information will undermine our
efforts to recruit people who can help us in the war on terrorism,
people who might be able to infiltrate terrorist cells and gain prior
knowledge of deadly plots against our Nation. Because of this leak,
people who might be inclined to pass information along to the United
States will now wonder whether we can be trusted to protect their
identity. After all, if they can't trust those who work in the White
House, who can they trust.
We are at war against terrorism. It is a war that will not be won
with our mighty arsenal of weapons. It is a war we can only win by
obtaining good intelligence about the plots that these terrorists are
hatching. Intelligence is our best weapon against terrorism. So loose
lips not only sink ships, they might prevent us from stopping a future
terrorist plot.
This is as serious as it gets. I used the word "traitor" yesterday
in a colloquy with Senator Harkin. I know that is strong language, but
I believe that about anyone who would leak this kind of sensitive
information at a time when we are at war. This is a crime. It is a
felony punishable by 10 years in prison.
This morning we heard that the Justice Department has launched an
investigation into this crime. Realistically, we not only have to do
away with what is bad but what looks bad. To have John Ashcroft, former
Senator, longtime political confidant of the President doing this
investigation simply won't sell. Considering the grave nature of what
has happened, this case warrants an independent counsel, a special
counsel, someone who does not have political ties to the White House.
If we need an independent counsel to investigate a private real estate
deal, certainly a breach of national security deserves the same level
of scrutiny. We must act quickly before memos and phone logs and
computer records are destroyed.
We must find the source of this leak and send a message to everyone
everywhere who betray the United States: Loose lips sink ships, and
they will land you in jail.
Mr. LEVIN. Mr. President, I have cosponsored the Schumer sense-of-
the-Congress amendment which is before the Senate. The amendment calls
upon the Attorney General to appoint an independent special counsel to
investigate allegations that a high ranking official or officials
within the Bush administration purposely disclosed to the media the
identity of a CIA agent involved in clandestine operations.
If these allegations are true, they are extremely serious. In fact,
the individual or individuals who provided this information to the
media may well have committed a felony under federal law. Such a
disclosure could endanger the CIA operative involved, former Ambassador
Joseph Wilson's wife, and makes it impossible for her to continue to
function as a clandestine CIA operative. This act could also endanger a
number of individuals, assets, contacts and even mere acquaintances of
the CIA operative. And, this act may send a cold shiver down the spine
of every CIA employee and asset now operating under cover anywhere in
the world. If the administration itself will not safeguard their
identities, how can they feel secure? These are men and women playing
absolutely critical roles in the defense of our national security. The
role in our security of such individuals gathering intelligence around
the world has been all the more clear since September 11, 2001.
Mr. President, this amendment seeks to send a clear message that we
believe that the American people deserve a credible and independent
investigation not influenced by or even weakened by the perception of
influence which results from an appointee of the President
investigating high level administration officials. An appointment of a
special counsel of unquestioned integrity and credibility is the only
way to assure that independence. I hope the majority will permit a vote
on this sense-of-the-Congress amendment today and that the Senate will
adopt this amendment.
The PRESIDING OFFICER. Who yields time?
Mr. GREGG. Mr. President, what time remains?
The PRESIDING OFFICER. The Senator from New Hampshire has 58 minutes.
The proponent of the motion has 3\1/2\ minutes.
Mr. REID. Mr. President, we know that the time will just run out.
Senator Schumer wanted to speak last. He is not here. So we have no
alternative. If the Senator is going to yield back his time, there is
no way to preserve our 3\1/2\ minutes.
Mr. GREGG. Mr. President, we are ready to proceed. If we can have the
clock run equally against both sides, I ask unanimous consent that that
occur until the minority's time has run out, and then we will make a
motion, unless the minority wishes to yield back.
Mr. REID. Mr. President, because of the time constraints, I ask
unanimous consent that a point of order not be taken in this matter and
that we have an up-or-down vote.
Mr. GREGG. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. REID. That is really too bad. I say that because it would seem
that something this important to the American public should at least
have an up-or-down vote. All we want is a resolution from this body
saying it is appropriate that the Attorney General, in effect, recuse
himself and assign a special prosecutor to look into this most serious
matter.
There is no question that somebody committed a crime. We don't know
who it is or who they were, but leaking this information is a crime. It
is a felony punishable by at least 10 years in prison. I think it is
unfair. We know that Senate rules often don't appear to be fair. But in
this instance, it would certainly be the right thing to do to allow an
up-or-down vote.
I yield back whatever time we have.
Mr. GREGG. Mr. President, this is being investigated by the FBI. It
is not being investigated by the Attorney General. The FBI will be
doing the legwork and we will find out what happened as a result.
Clearly, if the allegations are correct that a crime has occurred, it
should be prosecuted.
Mr. President, I yield back the remainder of my time. I make a point
of order that the amendment is not germane to the bill.
Mr. REID. Mr. President, I ask unanimous consent that the point of
order not be laid before the Senate until 3:45 and Senator Schumer at
that time be allowed 5 minutes prior to the point of order being taken.
Mr. GREGG. I object.
The PRESIDING OFFICER. Objection is heard. The point of order has
been made. The amendment is not germane. The point of order is
sustained. The amendment falls.
[...]
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I am very happy to point out that the
good Senator from Tennessee and I served as Governors together, and his
emphasis was always education then and obviously still is. I respect
him greatly.
I would like to speak for a few minutes on Senator Schumer's
amendment to call on the Attorney General to appoint a special counsel,
it having been laid aside on the basis of germaneness.
I rise in support of the erstwhile amendment--maybe it will come
back--calling on the Attorney General to appoint a special counsel to
investigate allegations that senior Bush administration personnel--
perhaps including those working at the very highest level of the White
House--may have knowingly and deliberately revealed to the press the
identity of an undercover CIA agent.
I speak as a Senator from West Virginia and also as vice chairman of
the Senate Intelligence Committee. This is a matter of national
security. It is a matter of criminal law. It is a matter that demands
the most careful, impartial, and independent investigation possible. As
I will explain shortly, it is actually a matter without legal
precedent.
The Senate, Republican and Democrat alike, should go on record
today--which we have not--to demand the Attorney General not hold this
too close within the administration family, where the investigation
will inevitably be questioned as raising conflicts of interest. This is
going to happen. Forget the people involved. It is simply going to be
an issue with the public. Rather, he should appoint a special counsel
that can assure the Nation that no person in the United States, no
matter where they work and what they do, are above the law in our
country.
Twenty-one years ago after the tragic assassination of a CIA station
chief and other attacks, Congress enacted the Intelligence Identities
Protection Act of 1982 to punish the naming of covert agents. The act
addressed essential appalling circumstances such as a private
individual or organization engages in a campaign to publicize the names
of agents. Appropriately, Congress reserved the most severe
consequences--including imprisonment for up to 10 years, substantial
sums of money--for unfaithful U.S. Government officials who
intentionally disclose the identity of any of our country's own agents.
To date, that kind of betrayal is so far beyond the pale, so to speak,
so incomprehensible, that as far as the Intelligence Committee has been
advised, there has never been a case prosecuted under it.
It is, therefore, with special sadness that our country now faces an
investigation into whether the unimaginable has, in fact, happened;
whether at the highest levels of our Government there has been a felony
disclosure of the identity of one of our covert agents.
When the Senate Judiciary Committee reported the identities
protection bill in 1981, it made a number of findings which are as true
now as they were then. They found that it is essential for our Nation
to have intelligence information that is timely, that is accurate, and
that human sources of intelligence are the key to that effort and that
we need and must be ready to rely on our own covert intelligence agents
to gather information from our sources.
To quote our Judiciary Committee:
Without effective cover for United States intelligence
officers abroad and without assurance for anonymity of
intelligence sources, the United States cannot collect the
human intelligence which it must have to conduct an effective
foreign and national defense policy.
This was true in the cold war when this law was enacted, and it is
certainly no less true today in the war against terror.
The disclosure of our agents puts them at risk. It puts their sources
at risk. And it puts our Nation, as a result, at risk.
In the case at hand, there is a further danger of immediate
importance: The Senate Intelligence Committee is conducting an inquiry
into prewar intelligence about Iraq and how that particular
intelligence compares with what is being found or is not being found on
the ground in Iraq. Two of the toughest questions we are asking are
whether any of the intelligence was exaggerated or distorted by the
policy- makers--that is, the users of the collected and analyzed
intelligence--and
[[Page S12172]]
whether any pressure was brought to bear on any U.S. intelligence
analysts to shape their prewar analysis.
I deeply hope the final answers to those questions is a no but the
jury is still out. The House has produced a preliminary report of
several pages. The Senate Intelligence Committee is hard at work on a
very thorough, very profound effort.
I ask my colleagues, how can we possibly expect our intelligence
community to come forward to help us to get the truth in the matter if
they fear that retribution will follow? One has not had to raise this
question before.
Since mid-July, our intelligence community officers have been reading
the same press reports that we have been reading. They are reading
about not just some inadvertent disclosure of a potentially covert
agent but something far more insidious. If press reports are true, then
the allegation at issue is that there may have been a coordinated
effort to release the name of a covert agent for the specific purpose
of discrediting somebody who disagreed with the administration about
the fraudulent and much discredited claims of Iraqi purchases of
uranium in Niger, a policy which never received virtually any credence
at all.
If the U.S. intelligence community and its agents believe their
careers can be crushed by a phone call or by a couple of phone calls,
how can they be sure their candor will be protected? Why should they
produce candor? Perhaps they will be punished. They do not know. That
does not happen, particularly in our world. It can happen sometimes in
politics, but this is an everyday part of their world. We rely on them
for accurate intelligence as they see it, as they believe it, that is
then gathered, analyzed, and passed on to policymakers for judgments.
How can the Congress meet our own investigation and oversight
obligations, a committee in each body? How can we learn the true facts
about the conduct of government officials and inform the American
people? At this point, the prompt appointment of a special counsel is
essential, the amendment being laid aside or not.
Under the Department of Justice regulation, the Attorney General is
to appoint a special counsel when investigation or prosecution of the
matter would present a conflict of interest for the Department and it
would be in the public interest as a further matter to appoint an
outside counsel to assume responsibility for the investigation in the
matter. Both tests are plainly met here.
The Attorney General faces a conflict of interest when an
investigation leads into the White House. And it is unquestionably in
the public interest to assure confidence in such a critically important
investigation.
The special counsel is admittedly not quite as independent as an
independent counsel--and we have had those--was under the former
statute. But the special counsel is our best and most impartial
mechanism for difficult circumstances such as these. The regulations
provide the special counsel shall not be subject to the day-to-day
supervision of any official of the Justice Department. If the Attorney
General concludes any action sought by the special counsel should not
be pursued, the Attorney General is required to notify the Congress,
and the Attorney General must report to the Congress if he or she wants
to fire the special counsel and can only do so for good cause.
In closing, since joining the Intelligence Committee, I have had the
honor of meeting dozens of covert intelligence agencies working
overseas in a variety of countries. These men and women make sacrifices
that few Americans even come close to understanding or know anything
about, which is as it should be. They live undercover, unable to tell
their friends or even their family, what they do or where they are.
They work tirelessly with much of the operational activity conducted in
the evenings after regular working hours on other matters and on
weekends when the rest of us are at home with our families. They put
themselves at literal risk almost every single day. And they love what
they do.
If the recent allegations are true, someone in this administration
has done these people a grave and lasting injustice. Our intelligence
agents need to know we understand the sacrifices they make and that we
will come to their defense when somebody puts them at risk. An
independent investigation is the only way--and it is the only way--to
restore their faith in the Government they serve. Not to do so would
have a chilling effect on the recruitment of people to do this vital
work, in a time when intelligence may be beginning to surpass actual
war fighting in terms of its importance to something called the war on
terror.
I regret this amendment has been ruled out of order on this bill. I
hope we will again take it up.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I ask unanimous consent that my remarks be
considered as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I come to the floor to respond to some of
the comments that I have heard concerning the CIA's request that the
Department of Justice look into the leak of the name of one of its
employees. My friends on the other side claim that a special counsel
should be appointed and that the Department should recuse itself from
the investigation.
Quite simply, the Department of Justice is the appropriate agency to
look into this matter. The CIA notifies the Department approximately 50
times per year to investigate complaints about the leak of classified
information. The Department has career professionals that address
matters like these. This professionalism and experience is needed in
instances like these to ensure that the investigation is done in a
competent and complete manner.
Some of my colleagues believe that a special counsel is needed
because there has been a "clear violation of the law." I respectfully
disagree. While I agree that this matter is a significant one and needs
to be promptly examined, it is premature to conclude that the
Protection of Identities of Certain United States Undercover
Intelligence Officers, Agents, Informants, and Sources statute has been
violated based merely upon media reports. In fact, there is reason to
believe that no violation of this statute has occurred. The
intelligence statute prohibits the disclosure of the identity of a
convert agent whose identity and relationship to the United States the
Government has affirmatively sought to conceal or that the defendant
disclosed the name of a covert agent with reason to believe that such
activities would impair or impede the foreign intelligence activities
of the United States. Robert Novak, the reporter who wrote the story,
has since stated: "Nobody in the Bush administration called me to leak
this." He also stated that, "According to a confidential source at
the CIA, Mrs. Wilson is an analyst, not a spy, not a covert operative,
and not in charge of undercover operatives." If that is true, there is
no violation of this statute.
I would further urge those whose knee-jerk reaction is to call for a
special counsel to step back for a moment. Political opponents of the
President have charge that Karl Rove leaked this information. When
pressed for specific evidence about Mr. Rove's involvement, they are at
a complete loss. In fact, it is my understanding that former Ambassador
Wilson, who has also charged that Karl Rove leaked this information,
recanted when pressed for evidence on Karl Rove's involvement. This
kind of speculation is unfounded. Unsubstantiated statements like these
should simply not take place on the floor of the U.S. Senate.
Since the Independent Counsel Statute expired in 1999, the Justice
Department, under former Attorney General Reno, promulgated new
regulations when the Attorney General may appoint a special counsel.
The regulation allows the appointment of a special counsel when there
is a need to investigate a unique case involving high-ranking executive
branch officials and/or there is a conflict of interest for the
Department.
The regulations allow the attorney general to appoint a special
counsel
[[Page S12173]]
when he or she determines that a criminal investigation of a person or
matter is warranted and (a) that investigation or prosecution of that
person or matter by the Department would present a conflict of
interest, or other extraordinary circumstances exist, and (b) that
under the circumstances, it would be in the public interest to appoint
an outside special counsel to assume responsibility for the matter.
I have every confidence in Attorney General Ashcroft and FBI Director
Mueller's integrity and ability to investigate this matter. The FBI and
the Department have career employees with the skill, experience, and
honesty to look into this matter. For those who doubt this, I would
point out that similar skepticism was raised in the Department's
ability to investigate the complaints made against it by those detained
following September 11th. My colleagues on the Judiciary Committee
know, because I held a hearing on the report, that the Department's
Inspector General issued an exacting report on the 9/11 abuses. The
report shows that the Department's Inspector General, and career
employees within the Department, pulled no punches regarding the
treatment of the 9/11 detainees.
This is the nature of career employees within the FBI and the
Department of Justice. The continuity of service within our law
enforcement community is what makes our criminal justice system the
best in the world.
So I recommend to those who are recklessly casting aspersions about
the ability of the Department and the FBI to professionally conduct
this investigation to take a careful look at the facts.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
[...]
