April 4, 2007

General Michael C. Hayden, Director
Central Intelligence AgencyGeneral Michael C. Hayden, Director
Central Intelligence Agency

Dear General Hayden:

This letter is to confirm our three separate conversations on Saturday March 31, 2007 during the Gridiron dinner. In each of these conversations in front of different witnesses you denied, most emphatically, that you had ever told Chairman Henry Waxman, House Committee on Oversight and Government Reform, that Valerie Plame was "covert." You stated you had told Waxman he could use the term "undercover," but "never" the term "covert."

Yet, during a March 16, 2007 hearing of his Committee where I was a witness, Waxman claimed, "General Hayden, the head of the CIA, told me personally that she was—that if I said she was a covert agent, it wouldn’t be an incorrect statement." (Emphasis added). I testified as an expert legal witness, not only as a lawyer with a national security and criminal law practice, but also as the chief Senate staff negotiator in 1982 for the Intelligence Identities Protection Act (IIPA). When I asked Waxman if you would swear she was covert under the act, he replied, "I’m trying to say this as carefully as I can. He [General Hayden] reviewed my statement. And my statement was that she was a covert agent." Of course, Plame was not ever an agent but a CIA officer, a distinction that anyone who is knowledgeable about the intelligence community should know.

A few minutes later, Waxman specifically quoted from a statement, which he said "General Hayden…cleared." He read in part, "And at the time of the publication of Robert Novak’s column, on July 14^th, 2003, Ms. Wilson’s [Plame’s] CIA employment status was covert."

I testified, and have written extensively, that there was no legal violation when Plame’s name was published because she was not covert within the statutory definition of the IIPA, the only criminal statute that prohibits disclosing the name of an actual covert officer or agent.

Words are important in any discussion of the law, but most especially in interpreting criminal law. The legal question is whether she was "covert" as defined by the IIPA. It is legally irrelevant whether Plame was covert at some other time in her career (unless it was within five years of publication), or whether she was "undercover" on the date of Novak’s column, or whether her job status was "classified" at that time. Contrary to your assertion Saturday night, the mere disclosure of classified information is not a crime per se.

Two other, much older criminal statutes prohibit disclosure of specifically described classified information. Title 18 USC § 793 prohibits disclosure of "defense information," such as the location of military bases, dockyards, or research laboratories. Title 18 USC § 798 prohibits disclosure of NSA type material, such as code, cipher, or cryptographic systems. These statutes do not cover outing a covert person. If they did, we would not have had to write the IIPA in 1982. We would have used one of those two existing statutes to prosecute persons who were outing covert CIA personnel serving abroad.

I am concerned, as I hope you would be, about Waxman misrepresenting during a congressional hearing what you approved or personally told him he could say. I am particularly concerned because Waxman, referring to your approval of the term "covert," repeatedly challenged my assertion that Plame was not covert, even going so far as to question my veracity at the end of my testimony: "[S]ome of the statements you’ve made without any doubt and with great authority I understand may not be accurate, so we’re going to check the information and we’re going to hold the record open to put in other things that might contradict some of what you say."

Now that you are fully aware of what Waxman claimed you said, and you have refuted his claim to a number of people, I would appreciate your informing Waxman that you never approved of his using the term "covert" to refer to Plame’s CIA status at the time of Novak’s July 2003 article.

Sincerely,

Victoria Toensing

Signed 4/4/07

— Victoria Toensing, a founding partner of diGenova & Toensing.