Victoria Toensing's Testimony before the Committee on Oversight and Government Reform

March 16, 2007
 

Chairman Waxman and Members of the Committee on Oversight and Government Reform, thank you for inviting me to speak this morning.  I am informed that this hearing concerns “White House procedures for safeguarding classified information,” and that Valerie Plame has been invited to testify.  Special Counsel Patrick Fitzgerald has characterized Plame’s employment status as “classified,” but conducted a three-year criminal investigation under the auspices of the 1982 Intelligence Identities Protection Act, which criminalizes only the disclosure of a “covert” intelligence officer or agent.  Therefore, I must assume that one specific goal of this hearing is to understand the difference between the two terms – classified and covert – and the importance of our intelligence community protecting the identities of covert agents under the 1982 law.  In that regard I would like to discuss the Congressional intent and clear mandates and prohibitions of that Act, and how it played a role in the investigation and indictment of Lewis “Scooter” Libby.

Intelligence Identities Protection Act

In late 1981, when I became Chairman Barry Goldwater’s chief counsel for the Senate Select Committee on Intelligence, my first assignment was to get the Intelligence Identities Protection Act passed.  Chr. Goldwater was the ultimate manager, meaning that I was to come to him if there was a problem only he could resolve.  Other than that situation, I was to negotiate whatever issues arose.  Thus, I had hands-on everyday involvement with those for and against the bill.

Although there had been hearings and drafts prior to my coming to the Intelligence Committee, there remained throughout my months of negotiations a major concern that had to be addressed.  Opponents of the legislation considered the criminalization of publishing covert names to be unconstitutional.  The media hired highly respected counsel, including the late Dick Schmidt, American Society of Newspapers Editors (ASNE), and Bruce Sanford, Baker & Hostetler, who represented a coalition of news organizations.  They vigorously voiced the press’ specific concern: specifically, that passing a bill that prohibits identifying an employee or agent of the CIA (or some other intelligence gathering agency) would have a “chilling effect” on criticizing the intelligence community.  We were then in the wake of Watergate.  The ability to criticize intelligence gathering and conduct of intelligence officers and agents was paramount to the media.  I assume and hope it remains important. 

Those who supported the concept of the law wanted the statute to pass constitutional muster.  If a prosecution violated the First Amendment, it was useless as a deterrent to those who had the specific intent to “out” truly secret officers and agents.  In reaction to both the strong lobbying by the media and ACLU, and Congressional concern for the First Amendment, two basic categories of persons subject to prosecution were created: 1) journalists and 2) those having authorized access to classified information, the latter being government personnel with clearances. 

Congress wanted to make it nearly impossible to prosecute a journalist for criticizing the CIA because it wanted to “exclude the possibility that casual discussion, political debate, the journalistic pursuit of a story on intelligence, or the disclosure of illegality or impropriety in government will be chilled” by the law.  S. Rep. 97-201, at 12. Therefore, any publication identifying a covert agent had to be done “in the course of a pattern of activities” with the specific intent to expose that agent, and “with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States.”  Additionally, the journalist had to know the information so identified the covert agent and that “the United States was taking affirmative measures to conceal that individual’s classified intelligence relationship to the United States….”  Under this definition, Robert Novak’s July 13, 2003, column does not come close to triggering the Act as to him. 

The second category is government employees.  In addition to a government employee having authorized access to classified information and disclosing it to a person without clearances (like a journalist), the following factors must be present for a government employee to violate the Act:

·        The United States is taking affirmative measures to conceal a covert agent’s intelligence relationship to the United States;

·        The person disclosing the identity knows that the government is taking affirmative measures to conceal the relationship;

·        The person disclosing the identity knows that the information so identifies the covert agent;

·        The covert agent whose identity was disclosed is an employee of an intelligence agency;

·        The covert agent whose identity was disclosed has a relationship with such agency that is classified;

·        At the time of the disclosure, the covert agent whose identity was disclosed was serving outside the United States or had done so within five years of the disclosure; and

·        The disclosure is intentional.

In a prosecution, all these factors, which are called elements of the offense, must be proven beyond a reasonable doubt.  Two of these factors were particularly important in drafting the law: 1) the definition of “covert agent,” including the requirement of serving outside the country, and 2) the law’s requirement that the government take “affirmative measures” to conceal the agent’s intelligence relationship to the United States.

Covert Agent

Under the term “covert agent,” two types of individuals are covered: an officer and an agent.  A person working for the CIA is an “officer.”  A person who is an informant or source for the CIA is an “agent.”  The media often err in this distinction.  To make the legislation simpler, the term “covert agent” was used by the drafters to refer to both officers and agents.  The Senate Report, when relevant, distinguishes how the law applies to each.

Although a “‘covert agent’ is specifically limited to an individual whose identity as an intelligence agency employee ‘is classified information,’” criminality does not turn on whether the information disclosed is classified. Id. at 15.  There should only be prosecution “when the defendant has knowingly disclosed information that, in terms of its specificity, its sensitivity, and the effort expended to maintain its secrecy, is virtually the equivalent of classified information.” Id.  In other words, the definition of a covert agent is more than classified and less than classified.  It clearly is not synonymous with classified.  As the Committee stated, “The mere fact that an intelligence relationship appears in a document which is classified does not constitute evidence that the United States is taking affirmative measures to conceal the relationship.” Id. at 19.  

Significantly, the Senate Report makes clear Congressional desire to limit application of the criminal law to disclosure of selected intelligence officers:

[T]he Committee has carefully considered the definition of “covert agent” and has included only those identities which it has determined to be absolutely necessary to protect for reasons of imminent danger to life or significant interference with vital intelligence activities.  Undercover officers and employees overseas may be in special danger when their identities are revealed…. (Emphasis added).

Id. at 15.

Notably, the legislation limited coverage of U.S. citizen informants or sources (agents) also to situations where they “reside and act outside the United States.”  Id. at 16.

This foreign assignment requirement developed from the impetus for the legislation: attacks on CIA personnel serving abroad.  Renegade former CIA officer, Philip Agee, exposed over 1000 CIA officers, which was followed by the December 1975 assassination of CIA Athens Station Chief, Richard S. Welch.  In 1980, Louis Wolf, co-editor of the Covert Action Information Bulletin, publicly claimed 15 U.S. officials in Jamaica were CIA.  He provided addresses and telephone numbers, information not considered “classified.”  Within a week two of those named were attacked.  Id. at 8.

Early drafts of the legislation covered only those individuals stationed abroad.  During my participation in the negotiations, the CIA brought up the issue that it was not unusual for CIA officers to be rotated back to the United States.  Such period of time was for about two to three years.  So we agreed to extend coverage for three years after a covert person left a foreign assignment.  Then the issue arose that the protection of the Act was not intended just for the CIA officers, but also for their sources.  “How long,” we asked, “would be a reasonable time to protect sources?”  The CIA replied that five years would be sufficient.  As a result of that round of negotiation, the criterion of the foreign assignment requirement for an employee to be a “covert agent” was drafted as follows:

[A] present or retired officer or employee of an intelligence agency…who is serving outside the United States or has within the last five years outside the United States.

§ 426 (4)(A).

In other words, the compromise language of “within five years” is intended to prohibit disclosure of the intelligence officer for five years for the purpose of protecting former sources, not protecting the person assigned back to this country.

There is a most recent example of a former covert officer bring named as such in the Washington Post.  In John Kelly’s March 1, 2007 column, he described Clare Lopez having lost a class ring in the mid-1980’s while scuba diving off Mauritius.  It was recovered recently by a German diver who returned it to her.  Nice story.

However, Kelly also described Lopez as “stationed at the U.S. Embassy in Mauritius” and as a “former CIA officer who is now a private consultant on issues related to the Middle East, terrorism and weapons of mass destruction.”  [App. A]. That story tells the public not only that Lopez was once covert but also that we have CIA presence in Mauritius.  No one made a peep at such revelations.  For Lopez, it is clear five years had passed.

In his own words, in an autobiography titled, “Politics of Truth,” Joseph Wilson, husband of Plame, reveals the timing of her return from foreign assignment as June 1997, some six years prior to Novak’s July 2003 column:

“In June of 1997, I arrived back in Washington to take my new job directing the African Affairs desk at the National Security Council. *** My move back to Washington coincided with the return to D.C. of a woman named Valerie Plame.  I had first met her several months earlier at a reception in Washington….” pp.239-40 [App. B. pp1-2]

Affirmative Measures

There was great displeasure by certain Senators, especially Chr. Goldwater, that the CIA had been sloppy protecting its own.  Indeed, one of the legislation’s seven findings states:

(7) The policies, arrangements and procedures used by the Executive branch to provide for U.S. intelligence officers, agents and sources must be strengthened and fully supported.

S.Rep at 11.

Such concern was the reason the Act required the government to be “taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States” before there could be a prosecution.

Throughout the Senate Report, disappointment is expressed about the Executive branch’s failure to provide adequate cover.  As the Committee noted, “[P]art of the bill is designed to improve cover.”  “Without effective cover for U.S. intelligence officers abroad…the United States cannot collect the human intelligence” it needs. Id. at 10.  (Emphasis added).  In this regard, Section 423 of the Act requires the President, “after receiving information from the Director of Central Intelligence,” to submit an annual report to both Intelligence Committees on “measures to protect the identities of covert agents, and on any other matter relevant to the protection of the identities of covert agents.”  Has the CIA done so? 

Given this concern and mandate, additional basic managerial questions of good intelligence tradecraft come immediately to mind.  I am aware that this Committee does not have oversight of the intelligence community so others, perhaps, must ask these questions:

·        Could the CIA produce immediately a list of all foreign assigned personnel it has designated covert under the Act?

 ·        Does the CIA make any such list available to selected few individuals who need to check whether to confirm or deny that person’s “intelligence relationship to the United States,” as required by the Act? (Think CIA spokesman who often confirms or denies to reporters whether certain people work at the Agency.)

 ·        Has the CIA established guidelines for briefers of its Executive branch clients so they do not reveal names of “covert agents” without a caveat not to repeat the name or relationship? 

·        Has the CIA devised a tracking plan so that five years after a formerly covert employee returns to the United States, he or she knows the Act no longer applies and, just as importantly, other persons have notice, e.g. a briefer?

No White House can prudently safeguard classified or otherwise non-disclosable intelligence information (such as covert status) unless its own intelligence agency follows the proper procedures to inform it and its Executive branch clients of that classification or status.  If Plame was really covert in July 2003 (or within five years of covert), the CIA was required under the statue to take “affirmative measures” to conceal her relationship to the United States, particularly because the criminal law comes into play.  If Plame was really covered by the Act in July 2003, why did:

·        The CIA briefer who said he discussed the fact of Wilson’s wife working at the CIA with Libby and the Vice-president, not tell them Plame’s identity was covert or classified;

·        Richard Armitage, (who, having seen Plame’s name in a State Department memo from which he gave the gossip to Robert Novak and later asserted,  “I had never seen a covered agent’s name in any memo…in 28 years of government”) not know Plame’s identity was not to be revealed;

·        State Department Undersecretary, Marc Grossman, not know Plame’s identity was not to be revealed;

·        CIA spokesman Bill Harlow tell Vice-president staffer, Cathie Martin, that Wilson’s wife worked at the Agency but not warn her Plame’s identity was not to be revealed;

·        CIA spokesman Bill Harlow (who, according to Wilson’s autobiography, had been “alerted” by Plame about Novak’s sniffing around, p. 346 [App. B, p3] ) confirm for Novak that Plame worked at the CIA;

·        The CIA not send its top personnel, like the Director, to Novak and ask the identity of Plame not be published just as the government does any time it really, really, really does not want something public, e.g. in December 2005 when the New York Times was about to publish the top secret NSA surveillance program;

·        The CIA not ask Joe Wilson to sign a confidentiality agreement about his mission to Niger (a document all the rest of us have to sign when performing any task with the CIA) and then permit him to write an OpEd in the NYT about the trip, an act certain to bring press attention, when his Who’s Who biography includes his wife’s name;

·        The CIA allow Plame to attend in May 2003 a Democratic breakfast meeting where Wilson was talking to New York Times columnist Nicholas Kristoff about his trip to Niger;

·        The CIA allow Plame to contribute $1000 to Al Gore’s campaign and list her CIA cover business, Brewster-Jennings & Associates, as her employer;

·        The CIA give Plame a job at its headquarters in Langley when it is mandated by statute “to conceal [a] covert agent’s intelligence relationship to the United States”;

·        The CIA send to the Justice Department a boilerplate 11 questions criminal referral for a classified information violation when its lawyers had to know that merely being classified did not fulfill the required elements for exposing a “covert agent”?

Such questions reveal slip-shod tradecraft, casting doubt on whether Plame’s identity was even classified, much less covert.

In fact, in a curious twist, while the CIA was turning a blind eye to Wilson writing about his mission to Niger (Did he go through the  pre-publication review process like the rest of us have to do?), it was sending to the Vice-president’s office documents about that same trip and these documents were marked classified.  So the very subject Wilson could opine about in the New York Times was off-bounds for the Vice-president to discuss unless the person had a clearance.

CRIMINAL INVESTIGATIONS UNDER THE ACT

Criminal statutes are interpreted precisely.  The rationale is that if a person is to be deprived of liberty, he or she should have sufficiently clear notice that specific conduct violates the law.  For example, if the law protects a former covert officer for five years after leaving a foreign assignment, a person can be prosecuted for revealing the name within four years, eleven months and 30 days, but not five years and one day later.

For public policy reasons, it is important for the CIA to take “affirmative measures” to protect the identity of a covert agent because it appears that even the accidental mention of a name or relationship is sufficient to trigger a full-scale years long criminal investigation.  (Two other statutes, 18 USC § 793 and 18 USC § 798, criminalize disclosing classified information, but not the names of employees or agents else we would not have needed the 1982 law.)  Although Libby suffered the most severely, numerous other persons were negatively affected.  They had to hire lawyers.  Several had to endure the angst of being threatened with indictment or jail.  Judith Miller, New York Times reporter, did go to jail.  If Plame was covert and the CIA had been fulfilling its obligations, all involved would have had sufficient notice from the CIA.  If she was not covert, there should not have been a CIA referral for Novak’s column because publishing a merely “classified” employee’s name is not covered by the 1982 Act or the other two criminal statutes.