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
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.
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
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
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]
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
(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
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
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.
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