Plame hearing transcript Panel 3
Full transcript to the Panel 3 of the Plame hearing:
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REP. WAXMAN: For panel number three, the chair would like to call forward Mr. Mark Zaid, an attorney with extensive experience representing government employees accused of mishandling classified information, and Ms. Victoria Toensing, an attorney in private practice and a former Senate staffer.
I want to welcome you both to our hearing today. Your prepared statements will be in the record in entirety. I would like to ask you for oral presentation to limited to five minutes.
It is the practice of this committee to ask all witnesses to take an oath, so if you would please stand and raise your right hand. (Witnesses are given the oath.)
The record will -- (short pause) -- witnesses answered in the affirmative.
Mr. Zaid, why don't we start with you.
MR. ZAID: Thank you, Mr. Chairman, members of the committee. It's my pleasure to testify again before this body.
For nearly 15 years I've been among a handful of attorneys nationwide who regularly handle civil litigation and administrative matters involving national security claims. This includes all aspects of security clearance, suspensions, denials, revocations, statutory and First Amendment challenge to classification decisions, leak investigations and general employment disputes that may arise within the intel, military and law enforcement communities. In exercise of my legal responsibilities, I often have authorized access to classified information.
We've heard of the operative documents that pertain to this topic -- Executive Order 12958, which was amended by 13292, and also Executive Order 12968. Agencies throughout the federal government have adopted implementing regulations attune to their specific situations, but those are the operative documents that we really rely on.
Section 4,1 of EO 13292 deals with who actually grants or is accorded access to classified information. There has to be a favorable determination of eligibility. There has to be an executed approved non-disclosure agreement, and there has to be a need-to-know determination. Each of these components is factually based. Indeed, whether a need-to-know exists is a question that is asked and answered by tens of thousands of federal employees and contractors thousands of time(s) every day, as part of their routine responsibilities.
However, the underlying premise of that first prong, the determination of eligibility, deals with a judgment determination, one of common sense, that is often referred to as the whole person concept.
Unfortunately, the system is anything but uniform. The process by which a clearance is or access is granted varies significantly, based on the level of clearance. Interim clearances can be very easily granted, with little effort by an agency. Most agencies, as we heard, will go through a periodic or background investigation that usually extends seven to 15 years for the individual, and periodic reinvestigations will occur between five and 10 years, depending on the backlog of the agency involved and the level of the clearance.
To be blunt, we can discuss all day what the regulations state, with -- what minimal due process might be required or expected in scenarios touching upon today's hearing topic, and what outcome a reasonable person would apply in any specific case. And that's -- (off mike) -- academically and legally fascinating discussion, at least for me.
But the fact is, the recitation of real-world anecdotal experiences by those who operate in this field will educate you with very different results. It's best to characterize any substantive discussion of security clearances and agency procedures surrounding such determinations as arbitrary and fraught with inconsistencies. Though theoretically every agency derives its authorities from these operative documents, implementation varies across the board. With some agencies, the process works very well. With others, it is particularly broken. Overall, the system works, but with numerous flaws, many of which can be repaired through legislative oversight or correction, though, to be sure, it is likely that any such attempt will engender cries of constitutional overreach by any White House.
Let me use this opportunity to go through a few observations from cases I've handled over the years.
Whether the unauthorized disclosure of classified information results in administrative, civil or criminal sanctions against an individual is a very fact-based inquiry for which no general rule truly exists. The suspension of an individual security clearance can arise from the receipt of unsubstantiated anonymous allegations or can occur after a thorough internal investigation. At what stage suspension occurs is up to the specific agency. Moreover, the type of suspension is not deemed to be -- this type of suspension is not deemed to be an adverse personnel action and therefore does not afford the employee any substantive challenge rights, assuming the employee's even notified of the substantive allegations that exist -- again, a very fact-based inquiry. No general rule truly exists.
Some agencies will utilize a security suspension to suspend the employee's employment altogether, pending conclusion of an investigation, which could take years. This may be paid administrative leave. This may be unpaid administrative leave. And if that clearance is reinstated at some point in the future, there is no compensation given to that individual whatsoever -- again, a very fact-based inquiry for which no general rule truly exists.
Punishment for an unauthorized disclosure can range from no action to something as mere -- administrative as a reprimand, oral or written, in the file; could be more serious, such as the revocation of a clearance; or, depending on the factual circumstances. criminal prosecution -- again, a very fact-based inquiry.
Significant inconsistencies exist governing agency determinations of access to classified info. Significant inconsistencies exist governing an individual's ability to challenge a revocation or suspension or denial. Significant inconsistencies exist as to how agency security investigations are initiated or handled.
Most agencies experience serious and harmful time delays with respect to security investigations that seriously impact an employee or contractor's life and in fact creates additional security concerns that did not previously exist.
An appeal of a clearance revocation is usually -- or denial -- will take often six to 12 months. And if it's the CIA, we may be talking two to three years.
Investigations into the leaks of classified information rarely result in either discipline or prosecution for a variety of reasons, including the failure of federal agencies to cooperate with one another. And the training for authorized holders of classified info, with respect to this need to know, differs from the positions the executive branch will espouse in adverse litigation for judicial proceedings.
In my testimony, I set forth a few recommendations that the committee can look into implementing. I'll leave that in the record. And I'll just conclude by saying that this is an area that cries out for vigorous legislative oversight, especially given recent efforts by the executive branch to expand criminal penalties governing disclosure of classified information, or unauthorized disclosure, to beyond those under any affirmative obligation to protect such info.
I encourage this committee to remain steadfast in its vision to ensure accountability, efficiency and fairness whilst combating anticipated opposition from the executive branch, not matter which party may be in power. I'm more than happy to provide elaboration into any of those points or anything of this hearing topic during the Q&A or in the written submission later. Thank you.
REP. DIANE WATSON (D-CA): (Off mike.) Victoria Toensing.
MS. TOENSING: Toensing.
Madame Chairman and members of the committee, thank you for inviting me to testify about safeguarding classified information. Since you also invited Valerie Plame here, I had to assume you also wanted to consider the protection of covert agents as specified under the 1982 Intelligence Identities Protection Act, the act that was the basis for the special counsel's investigation.
My first assignment as chief counsel for the Senate Intelligence Committee for Chairman Barry Goldwater was to get that law passed. He put me in charge of negotiating with the parties, particularly with the press, who vigorously opposed the legislation, because they claimed it would curtail their ability to criticize the Intelligence Committee. It would have a chilling effect, the press argued.
And in my prepared statement, I thoroughly discuss the structure of the act. But I want to now discuss, because it's important to the press arguments, how we divided the types of persons who could be prosecuted into two classes: journalists and government employees having authorized access to classified information. We drafted such a high standard for journalists that it's almost impossible for a working journalist like Bob Novak, in his column, to have violated the law. But we also did not want government employees to be chilled in reporting wrongdoing, or prosecuted for accidentally saying someone's name without having the specific knowledge and intent to out a covert person. That caution and respect for the mighty power of the criminal law leads me to the main point of my testimony.
Chairman Goldwater's grave concern in creating the legislation -- a great libertarian, he -- that if Congress was going to criminalize naming what in those days we referred to as undercover personnel, then the CIA better fulfill its responsibility by protecting the cover of those employees. Chairman Goldwater was most displeased at that time, and he characterized the CIA's cavalier treatment of protecting its undercover, and that's how we referred to it before the law, of protecting their cover. And you see that concern when you study the law, and you see it in one of the seven findings.
But more importantly, we created a rare approach in the criminal statute. Usually in the criminal law, it's only the conduct of the defendant that's at issue. But in this law, Congress required the CIA to take affirmative measures to conceal the government's relationship to that covert agent. No one can be prosecuted under that law unless this requirement is fulfilled by being proved beyond a reasonable doubt.
The statute also requires the CIA to report annually, starting in February of 1983, to the House and Senate Intel Committees on whatever their affirmative measures were, whatever they created to protect the identities of covert agents.
I think you might all want to check to see whether they've ever fulfilled that mandate by the law, that legislative mandate.
But it comes to mind, in the course of this three-year investigation and listening to even the testimony today -- could the CIA produce immediately -- meaning, did they already have it prepared and they don't hurry and get it prepared at your request -- a list of all foreign-assigned personnel that it has designated "covert" under the act? Does the CIA make any list available like that to people like their spokesperson, who has to get on the telephone to people like Bob Novak and confirm or deny that somebody works at the CIA?
I have several other questions in my prepared statement, but I want to go on to my last point by turning to this particular case, where numerous persons were subpoenaed -- repeatedly, some of them -- before a grand jury, threatened with prosecution in a matter that in my legal experience had no criminal basis. If Valerie Plame were really covert under the law -- and I'm not saying whatever they say in the halls of the CIA -- is she were really covert under the law, then why didn't Robert Grenier of the CIA brief her, who talked to Scooter Libby and the vice president, about Wilson's wife working at the CIA? Why didn't he tell them that her identity was covert? Why didn't Richard Armitage, who said -- he was the original leaker, of course, to Bob Novak -- but he said, having seen Plame's name in a department memo -- he had never seen a covert agent's name in 28 years of government practice. So it was a surprise to him. He didn't know how Plame's identity was -- that it wasn't to be revealed. Neither did Marc Grossman, the undersecretary.
If the CIA was really being careful and had guidelines for all these covert agents, why did they allow Valerie Plame contribute $2,000 to Al Gore's campaign and list her CIA cover business, Brewster Jennings & Associates, as her employer? Why did the CIA not ask Joe Wilson to sign a confidentiality agreement about his mission to Niger? I can tell you, I have to do it. I don't know, Mark, if you do it when you take a case, but I can't talk to somebody for one hour regarding representation unless I sign a confidentiality agreement. And then they permit him to write an op ed piece in The New York Times about the trip, an act certain to bring press attention when his wife's name is in Who's Who? I mean, this tradecraft is just appalling to me, who has spent a good deal of my life in government service having to deal with classified material and with the CIA in an oversight capacity.
The CIA never sent its top personnel to Bob Novak, like the director, and asked him, please, please, don't print, don't publish this name. What they said to him was, well, we'd rather you not do it, but she's not going to have another foreign assignment, so -- and it was very cavalier. They certainly knew, the CIA, how to go and send the top people when they didn't want -- in December of 2005, when they didn't want The New York Times to publish the NSA surveillance program.
I have -- there's -- why didn't CIA spokesman Bill Harlow, who, according to Wilson's autobiography -- and you spoke with Valerie Plame about it, and he had been alerted that Bob Novak was sniffing around -- why did he confirm for Bob Novak that Valerie Plame worked at the CIA? Why did Bill Harlow tell vice presidential staffer Cathy Martin that Wilson's wife worked at the agency but not warn her, oh, you shouldn't be giving up this identity?
Why did the CIA give Plame a job at its headquarters in Langley when it's mandated by the statute, quote, "To conceal a covert agent's intelligence relationship to the United States," unquote? And if this was really a violation of the covert agent identities bill, why did the CIA send to the Justice Department a boilerplate, 11 questions criminal referral, for a classified information violation, when its lawyers had to know -- I pray that they knew -- that merely being a classified person or the situation being classified did not fulfill the elements required by the Agent Identities Protection Act?
REP. WAXMAN: Thank you very much, Ms. Toensing.
I want to recognize Mr. Davis to start off the questions.
REP. TOM DAVIS (R-VA): Thank you.
We didn't start with going into the covert -- (I'll take ?) Ms. Plame at her word in terms of what --
MS. TOENSING: I'm having a hard time hearing you.
REP. T. DAVIS: Okay. I just said, we didn't go extensively into what was covert or not. There was no one -- I asked if anyone had told her she was versus what she thought. But the question was there appear to be no crimes committed. I want to ask each of you, can you name a leak case that you've dealt with that has undergone more scrutiny or investigation than this one? Mr. Zaid?
MR. ZAID: Not as much -- certainly nothing much as public as this. There are --
REP. T. DAVIS: Even privately, with a grand jury and --
MR. ZAID: There are numerous grand juries, even ones that are going on now in dealing with leak investigations, and clearly they haven't received the amount of publicity that this case has.
REP. T. DAVIS: Or can -- I mean, do you have a special prosecutor on this, and you can look at the hours of testimony. This has undergone as much scrutiny as any case you're aware of?
MR. ZAID: Sure.
MS. TOENSING: I used to tell Chairman Goldwater -- because he'd say, "I want those leakers" -- in much more crustier language than that -- "I want those leakers prosecuted." And I'd say, "Hmm. It's the rule of 38. If 38 people knew about it, you're probably not going to get a prosecution." And so usually there is not a prosecution in that case.
REP. T. DAVIS: I mean, the thing that strikes me through all this is if the CIA fails to take the affirmative steps to protect their own agents, how can you expect the recipients of the information to know that the information's protected and take appropriate precautions, Mr. Zaid?
MR. ZAID: Well --
REP. T. DAVIS: I'll ask you both.
MS. TOENSING: I don't know how -- I mean, the whole reason that we put into the law -- because we didn't want employees to be chilled from reporting wrongdoing, that the person had to know, have knowledge that the CIA was taking these affirmative measures to protect the identity and the relationship of that person. So if nobody's telling anybody, it's like, who knew? How would you know that something was not to be repeated?
REP. T. DAVIS: I mean, we're pointing -- the majority's pointing a finger at the White House, but the leak didn't come from the White House. And secondly, there is no evidence presented here today at least that anybody in the White House knew that she was a covert agent.
MS. TOENSING: Not one person told anybody in the White House. We have no evidence --
REP. T. DAVIS: Well, let me ask Mr. Zaid, and then --
REP. WAXMAN: Excuse me. You're saying that conclusively. Do you know the facts? Or you just say there's no evidence?
MS. TOENSING: I -- well, I -- I know what facts are out there. If somebody wants to point to another fact, I'll be glad to listen. But I know --
REP. WAXMAN: So what you've heard -- you can reach that conclusion.
MS. TOENSING: No, testimony. I'm talking testimony.
REP. WAXMAN: But you don't know all the information?
MS. TOENSING: (That's right ?).
REP. WAXMAN: Okay.
Mr. Zaid?
MR. ZAID: I think we have to make a distinction between criminality and what type of administrative sanctions could possibly have been imposed. I don't know -- I have no personal information with respect to this case, other than what everybody else does in reviewing it with great interest, especially since it's in my subject matter knowledge.
And Ms. Toensing is absolutely correct with many of her questions with respect to the Intelligence Identities Act, which has a very exacting standard.
Ms. Plame, as she indicated, was covert. That's a distinction between possibly under the Intelligence Identities Act and that classified information was leaked. And then the question, then, is, is it of a criminal magnitude versus something less than that? And those could be any number of penalties.
REP. T. DAVIS: But if you don't know she's under cover, it's hard to put a penalty on somebody, isn't it?
MR. ZAID: That would be something like the previous witness, where his office would have to investigate to see how the leak came about.
REP. T. DAVIS: There is no question this should never be leaked. We should never out any undercover operative. I don't think anyone here can condone that in any way, shape or form. The difficulty I'm having, though, is we're focused today just on the White House. The CIA, I think, bears some responsibility. Mrs. Plame's own testimony today talked about they knew this story was coming and she did the appropriate thing in reporting to her superiors that this story was coming, a story that could end her career.
And what did her bosses do? They obviously didn't persuade Mr. Novak. But the question is, did they send their "A team" up there to talk to Mr. Novak? Did they let him know that an agent could be outed? That is the question.
Ms. Toensing, what's contemplated under the statute in a case like that?
MS. TOENSING: Oh, the statute has very high standards. It's almost impossible, as I said, for a journalist to be indicted under it, just a regular working journalist, not someone who has a specific intent and a pattern and practice and all that.
REP. T. DAVIS: But no journalist in their right mind would do this on purpose.
MS. TOENSING: But an employee has to be aware that the agency is taking affirmative measures to protect or conceal this person's relationship to the United States. If nobody even told the people who were being briefed -- I mean, the State Department didn't know. Dick Armitage didn't know. He's gossiping it to Novak.
REP. T. DAVIS: But the question is, once it gets to the press level, say someone inadvertently leaked this to the press, what should the CIA do? And not withstanding the act, from a policy perspective what should the CIA do or be able to do to protect their operatives, and what do you think they did in this case?
MS. TOENSING: Well, they didn't do anything in this case. Anybody looking at it from as I view it, as I see all the facts, I have no reason whatsoever to believe that Ms. Plame was covert under the statute. I mean, they can call each -- they call -- I've represented a covert officer. It's not an agent, actually. The statute uses that term, but Ms. Plame was a covert officer. I've represented a covert officer from the CIA.
And let me tell you, in the course of my representation, The New York Times was going to print her name on its front page, and The New York Times reporter, a wonderful reporter, Tim Weiner, called me and said the CIA just called him and told him that they were going to go after him criminally if they printed her name. No such threat was ever given to Bob Novak. And good for Tim Weiner, he went ahead and printed it anyway.
REP. T. DAVIS: Well, let me just ask this. So the statute at this point gives the press almost an immunity on those kind of issues should they -- once they learn about it; it is that your reading of the law?
MS. TOENSING: Yes.
REP. T. DAVIS: What should the CIA have done in this case if they wanted to protect an operative?
MS. TOENSING: The CIA should have brought in -- if this was a very big deal to the CIA, they should have brought in the DCI, at least the deputy and come in with Bob Novak and have a talk and say, "You cannot print this name. This would just be terrible. This is national security," just like they did with the NSA.
REP. T. DAVIS: Thank you, Ms. Toensing.
Let me just ask you, from a policy perspective, not withstanding where the law is today that sets a very high standard for the press, what should we do -- in future cases, what should the CIA do once you -- if you're going to have an operative outed or a top secret memorandum that could damage national security, how should that be handled from a policy perspective?
MR. ZAID: I wouldn't in any way divert blame from the CIA in this matter. There are many steps they could have taken and Ms. Toensing has identified them, and it wouldn't have been the first time where very senior officials of the CIA would go to members of the press. I often represent covert offices, I mean, routinely, and I know the precautions that they try and impose on me, which I follow to protect them, because if their identities are released, it does put their lives in jeopardy. And even more importantly, because they're usually back here in the United States, it puts everyone that ever had in contact with their lives in jeopardy as well as operations.
I don't know why the CIA didn't do more. That's a good question. The CIA should be here to explain that. Again, I'd make a distinction between that we not only look at the criminality of this, but we also look at the administrative disciplines that should have been metted out. I had a client who was disciplined because he was acting as a carrier with classified information, and he left the bag locked up in his locked car while he went into McDonalds to get a burger with the car in sight. That was deemed a violation. It took me a year to get his clearance back.
So the agencies will take it seriously when they wish to.
REP. T. DAVIS: Thank you.
REP. WAXMAN: Thank you very much, Mr. Davis.
I have questions, but I don't know whether I want to go into all the time to ask questions.
But I am stunned, Ms. Toensing, that you would come here with absolute conclusions that she was not a covert agent, the White House did not leak it, no one seemed to know in advance that she was a CIA agent.
Do you know those facts from your own first-hand knowledge?
MS. TOENSING: Well, let's just take those one by one.
I -- as I said, I was there. I was the chief drafter for Chairman Goldwater --
REP. WAXMAN: I'm not asking for your credentials. I'm asking how you reached those conclusions.
MS. TOENSING: Well, that's part of my credentials is because I know what the intent of the act was.
REP. WAXMAN: No, I'm not asking what the intent of the act was.
MS. TOENSING: Well, that's --
REP. WAXMAN: Do you know that she was not a covert agent?
MS. TOENSING: She's not a covert agent under the act.
REP. WAXMAN: Okay. So you're --
MS. TOENSING: You can call anybody anything you want to in the halls of the CIA, but --
REP. WAXMAN: Yeah, General Hayden, the head of the CIA, told me personally that she was -- that if I said that she was a covert agent, it wouldn't be an incorrect statement.
MS. TOENSING: Does he want to swear that she was a covert agent under the act --
REP. WAXMAN: I'm trying to say this as carefully as I can. He reviewed my statement, and my statement was that she was a covert agent.
MS. TOENSING: Well, he didn't say it was under the act.
REP. WAXMAN: Okay. So you're trying to define it exactly under the act.
MS. TOENSING: That's important.
REP. WAXMAN: No, no, no, no, no. I'm not giving you -- I'm not yielding my time to you. So that's your interpretation, she's not -- do you know that the White House -- no one in the White House leaked this information?
MS. TOENSING: Well, I don't even know how to deal with the word "leak" here. I know that people in the White House --
REP. WAXMAN: Well, Karl Rove admitted he leaked it. Do you think he's not telling us the truth?
MS. TOENSING: Well, the words are important, and I'm not sure what details --
REP. WAXMAN: Oh, so you want to completely define the word so there's so narrow a meaning that your statements can be credible but not honest.
I'm not asking about the statute.
MS. TOENSING: Well, if I could --
REP. WAXMAN: I'm not asking about the statute.
MS. TOENSING: Well, but --
REP. WAXMAN: Evidently, if there were a criminal violation, the special inspector general investigating this matter might have brought criminal action. Put that aside.
MS. TOENSING: Well, let me just get --
REP. WAXMAN: Karl Rove said he leaked information. Do you think that he did not?
MS. TOENSING: Let me just give you an example, and that's why I don't like --
REP. WAXMAN: No, I want to know yes or no.
MR. ZAID: Could she have an opportunity to answer?
MS. TOENSING: No, and I'll be glad to explain.
REP. WAXMAN: No, she may not have an -- I'm asking a direct question. This could be answered yes or no.
MS. TOENSING: Well, they can't, but I'll answer no, then, and explain it if you like.
REP. WAXMAN: Okay. Did you have firsthand information that none of the people at the White House had knowledge that she was a covert agent?
MS. TOENSING: There's been no testimony. I can only go by that. If you have the information otherwise, I'll be glad to listen.
REP. WAXMAN: But you stated it so affirmative and conclusively that I thought maybe you had access to information that we didn't have. You didn't.
MS. TOENSING: I have information to the testimony. And so because I know what the testimony is, that everybody -- and I'm sure that the special counsel would have brought in anybody who had anything to do with it in the trial.
REP. WAXMAN: Well, maybe he would have; maybe he wouldn't have.
MS. TOENSING: Not one person was told.
REP. WAXMAN: You would have thought the White House would have investigated the matter, and they didn't.
MS. TOENSING: Not one was told.
REP. WAXMAN: Mr. Zaid, have you ever -- in your experience with these kinds of cases, do you -- do agencies wait until a criminal investigation is complete before taking any action? Or do they sometimes say, well, while this is pending we're going to take away the security clearance for more information?
MR. ZAID: They do not wait, Mr. Chairman. There is no requirement that they wait. I could understand in some cases, there could be a need for coordination. But very often in my experience, by the time you've got into a criminal matter, the employee or contractor's clearance has already been suspended.
REP. WAXMAN: And if an agency's goal is to prevent additional security violations and protect classified information, doesn't it make sense for the agency to do something right away, rather than wait as long as three years? I mean, this is three years now that these same people in the White House have had classified information given to them, even though they've already admitted, in most cases, that they've disclosed that information. I don't think they should -- does it seem right to you that they would wait till not only the investigation is complete, but all the prosecution has been handled?
MR. ZAID: I find it very disconcerting and inconsistent with what I've seen at other agencies. I have seen far less of a grave situation or clearance infraction that has been addressed far more quickly by an agency. Again, I don't know personally, besides what we all know, most part, publicly, from what transpired. But from an administrative standpoint, I'm very surprised that something has not been done. If it were one of my clients, I'm sure something would have been done.
REP. WAXMAN: Ms. Toensing, I don't know if you're familiar with all the administrative activities. You're knowledgeable about the law, whether it's a criminal violation. But in your experience, do you know whether agencies will sometimes suspend people's security clearances while there's an investigation going on?
MS. TOENSING: Some do, some don't. It would depend on, as was said by the panel before, a case-by-case basis.
REP. WAXMAN: Mm-hmm.
MS. TOENSING: Because -- and here, if I were the lawyer for a person making the decision whether to do so, I would really want the decision maker to weigh whether it would appear to be obstruction of justice if you start calling it witnesses and you start interviewing the witnesses and you're not part of the Justice Department --
REP. WAXMAN: That would go through an investigation, but you could simply say there's an investigation going on. In the meantime, I think it's prudent not to allow you to get more classified information. That's done frequently, isn't it?
MS. TOENSING: I didn't understand what your question was.
REP. WAXMAN: Rather than do a whole investigation that might put somebody in a situation where they've got two investigations going on, and they say, well, we'll let this other investigation take place, but in the meantime, we'll suspend your access to classified information --
MS. TOENSING: That sometimes helps. It -- that sometimes happens. It depends on what the violation is. It can happen, it cannot happen, as Mr. Zaid --
REP. WAXMAN: Okay. It's not unheard of. Thank you.
Mr. Cummings?
REP. ELIJAH E. CUMMINGS (D-MD): Thank you very much, Mr. Chairman.
You know, just sitting here listening to this -- and it's just something that it's incredible to me, and I think we're losing sight of what went on here. We had an American who simply wanted to serve her country, who put her life -- her life -- on the line. And I don't know what Goldwater was doing, you know. But one thing I do know is that we had a lady here who lost her job, lost the opportunity to carry out the things that she apparently wanted to do -- it was her love -- while risking her life. And out of all of this testimony, I hope we don't lose the scope of that.
There's a reason why we have these rules, these laws and these executive orders. And those reasons basically go to trying to protect people, Americans, who want to go out there and protect us and try to make sure that they are not harmed. And you -- were you here, Ms. Toensing, when Ms. Valerie Plame testified?
MS. TOENSING: Yes, I was.
REP. CUMMINGS: One of the things that she said -- she said two things that I felt that will be embedded in the DNA of every cell of my body until I die. She said, "I did not -- I expected other countries to try to reveal my identity, but never did I expect my own government to do it." And then she said something else that was very interesting. She said that as a result of the disclosure, whole networks of agents have been placed in jeopardy. And the reason why I say that is because it seems like to me all of us as Americans, we want to make sure that we did every single thing in our power to protect those people who are going out there trying to protect us.
And going back to the -- you know, we have a situation here, too, where -- you know, it wasn't just the law, it was the Order 12958, the president's order.
And unlike the criminal statute, which requires an intentional disclosure of classified information, the administrative rules prohibit not just intentional disclosures but reckless and negligent ones as well. Isn't that right? Is that correct?
MS. TOENSING: You're reading from it. I assume that you read it appropriately.
Let -- can I just say a word in reaction to that? I have no problem -- I have no problem -- with Ms. Plame. I respect the service that she contributed to this country.
My complaint is twofold: one, against the CIA for not taking the proper precautions, as they had promised to do so when this act was passed in the 1980s, and secondly, with the application, because I'm a criminal defense lawyer, but I was also a prosecutor, and I don't like to see the law abused. I don't like the application of a criminal law to a situation that does not have the elements of it. I think that's an abuse of prosecutorial power.
REP. CUMMINGS: Well, I would take it, and I'm -- I was a criminal lawyer too and -- you know, and I'm sure that consistent with what you just said, you believe that testimony should be accurate. Did you not? Didn't -- wouldn't you -- I mean, that seems consistent with what you just said, that you would want anybody's testimony to be accurate. Wouldn't that be correct?
MS. TOENSING: That's correct.
REP. CUMMINGS: And I think you said here a little earlier that she had not been out of the country for five years.
MS. TOENSING: No.
REP. CUMMINGS: Didn't you say that?
MS. TOENSING: No, the statute doesn't say that. It says foreign assignment, and that's very different.
REP. CUMMINGS: No, what did you say?
MS. TOENSING: I said foreign assignment. I didn't testify about that here yet.
REP. CUMMINGS: I thought I read it in something that you said to the press at some point. You didn't say that?
MS. TOENSING: Well, I've always said -- I've always used the term of the statute.
REP. CUMMINGS: It says here, The Washington Post, February 18th, just prior to the start of deliberations with the jury in the Scooter Libby trial, and you said this as follows. It may be wrong. The Washington Post can check it out. But it says, quote, "Plame was not covert," and you've said today. Going on with the quote -- this is your quote -- "she worked at the CIA headquarters and had not been stationed abroad within five years of the date of Novak's column."
MS. TOENSING: Right. Right. That's the same concept as serving outside the United States. That was the whole concept that we had when we passed the law. The first draft of the law -- and I have it in my statement -- was we only applied it to persons who were outside of the United States. We never applied it to anybody inside the United States, and then people wanted rotation people covered. The CIA said, oh, you got to cover rotation people. So we said, how long is that? And they said, two to three years. We said, okay. We'll change it or within three years of coming back to the United States, and then somebody said, oh, but people retire. And so we said, well, okay. CIA, how long do you need to protect those sources that the person had while serving abroad? And they told us five years, and so that's why we had the five-year requirement. But it was always intended, because of the assassinations abroad, to protect our personnel serving abroad. It was never meant --
REP. CUMMINGS: I see my time is up. Thank you very much.
MS. TOENSING: -- to protect people inside the United States.
REP. WAXMAN: Thank you.
I just want be very clear for the record. I said earlier, General Hayden and the CIA have cleared the following comments:
During her employment at the CIA, Ms. Wilson was undercover. Her employment status with the CIA was classified information prohibited from disclosure under the Executive Order 12958. And at the time of the publication of Robert Novak's column on July 14th, 2003, Ms. Wilson's CIA employment status was covert. This was classified information.
I just wanted to repeat it. I don't know if I misstated it or not, but let's no one misunderstand it. And I will just use those words, so we'll clarify for the record.
Ms. Watson.
REP. WATSON: Thank you, Mr. Chairman.
I want to kind of pursue this line of questioning, Ms. Toensing, as well. It is reported again by The Washington Post on February 18, 2007 -- (short pause) -- this is your quote. I'm going to read it; it was just read.
"Plame was not covert. She worked at CIA headquarters and had not been stationed abroad within five years of the date of Novak's column."
You said you were here, and you heard Ms. Wilson's testimony. "I took note on her testimony and I quoted her, and she said she was a covert agent. And that was her statement."
Now, it seems to me that your remarks are contrary to that statement. So do you still maintain that on February 18, 2007, Ms. Wilson was not a covert CIA agent?
MS. TOENSING: Not under the law. She didn't say she was under the law. In fact --
REP. WATSON: Wait -- wait a minute.
MS. TOENSING: -- she said several times that she was not a lawyer. I know what the law requires.
REP. WATSON: Reclaiming my time. You said -- this is your statement from that date -- "Plame was not covert." And my question directly is, do you still maintain that on that date she was not a covert CIA officer?
MS. TOENSING: I was trying to answer. Yes, I still maintain that --
REP. WATSON: Yes or no? Yes or no?
MS. TOENSING: I still maintain it, yes.
REP. WATSON: That she was not a covert --
MS. TOENSING: Under the law.
REP. WATSON: Okay.
MS. TOENSING: Completely.
REP. WATSON: Ms. Plame was sworn.
MS. TOENSING: And I'm sworn. I'm giving you my legal interpretation under the law as I know the law, and I helped draft the law. The person is supposed to reside outside of the United States. And let me make one other point.
REP. WATSON: No. Reclaiming my time, because this is being timed and members do have to leave.
Did you receive any information directly from the CIA or Ms. Wilson that support your assertion that Ms. Wilson was not a cover officer?
MS. TOENSING: I didn't talk to Ms. Wilson or the CIA.
REP. WATSON: Okay. And do you have any information about the nature of Ms. Wilson's employment status that director Hayden and Ms. Wilson don't have?
MS. TOENSING: I have no idea. (Laughs.) I don't know what he has that I don't have, you know, vice-versa. I can just tell you what's required under the law. They can call anybody anything they want to do in the halls, but under this statute, a criminal statute, which is interpreted very strictly, all of these elements have to be proven beyond a reasonable doubt.
REP. WATSON: Okay. Your --
MS. TOENSING: That's been my concern.
REP. WATSON: Okay. Your testimony is focusing on the criminal prohibition in the Intelligence Identities Protection Act. But I don't see any mention whatsoever of the administrative restrictions contained in Executive Order 12,958, which is what the invitation letter asks you to address.
As you note in your written statement, and we have copies of it, there are numerous elements that must be proven beyond a reasonable doubt in order to establish a crime under the IIPA. In contrast, the administrative rules simply prohibit the disclosure of classified information to anyone not authorized to receive it.
Unlike the criminal statute, which requires an intentional disclosure of classified information, the administrative rules prohibit not just intentional disclosures, but reckless and negligent ones as well. Is that right?
MS. TOENSING: Of course.
REP. WATSON: Okay.
Therefore, an improper disclosure of classified information violates the executive order even though it does not violate the criminal statute. Is that right?
MS. TOENSING: I'm just -- I'm just trying to find --
REP. WATSON: Is that right?
MS. TOENSING: I was invited here to talk about safeguarding classified information.
REP. WATSON: Excuse me. Reclaiming my time. Reclaiming my time. Is that right? Yes or no.
MS. TOENSING: Would you repeat it, please?
REP. WATSON: I will.
Therefore, an improper disclosure of classified information violates the executive order even though it does not violate the criminal statute? Yes or no.
MS. TOENSING: I take no issue with that. Yeah, that's right.
REP. WATSON: Okay.
REP. WAXMAN: Thank you, Ms. Watson. Your time has expired.
REP. WATSON: Okay. Thank you.
REP. WAXMAN: Mr. Van Hollen.
REP. CHRIS VAN HOLLEN (D-MD): Thank you, Mr. Chairman. Let me thank both our witnesses here today.
Ms. Toensing, let me just ask you, getting back to the overall context in which this all happened, wouldn't you agree that the reason the White House officials disclosed this information, leaked it quietly to the press, was in an effort to discredit somehow, Ambassador Wilson, as a result of the article he wrote in The New York Times?
MS. TOENSING: I have no idea why they gave out that information. I do know that there was this allusion by Joe Wilson that he was sent on the trip by the vice president's office. So it made sense to me, if you're sitting in the vice president's office, to say, huh, we didn't send him. We don't know what's this all about.
And in the inquiry, as I understand it, and you may have different facts, the response was, his wife sent him. And guess who did that? The INR statement at the State Department.
REP. VAN HOLLEN: Well, let me ask you. Do you know why Mr. Rove, after disclosing some of this information to Mr. Cooper at Time Magazine, would have concluded by saying, I've already said too much?
MS. TOENSING: I have no idea.
REP. VAN HOLLEN: It seems to me that that kind of statement -- of course, we can't all read Mr. Rove's mind, but an ordinary interpretation of that made me to conclude that he already provided him information that he knew that he shouldn't be providing.
Let me just go back to the other statements made by the White House? We saw the clip here of their spokesman, Scott McClellan, stating that the White House had not been involved in the disclosure of Valerie Plame as somebody who worked at the CIA. Now you agree she worked at the CIA, right?
MS. TOENSING: Yeah. I didn't hear that statement, but that's okay if you're just going to say he said those words. I thought he said in giving out classified information, but I don't know.
REP. VAN HOLLEN: My understanding is, what they were essentially saying was that they were not involved in the disclosures that had been made. And clearly in the testimonies, they were involved in the disclosure that had been made.
Let me get back to the, as I said, the purpose of the hearing. And part of this purpose of the hearing was to look at how the White House safeguards security information.
That's the reason we had the second panel.
And did you know before the testimony today that the White House itself had not undertaken any kind of investigation internally with -- from the security office?
MS. TOENSING: I didn't know that, but I would have concurred with that. With a massive criminal investigation going on, if I was lawyer to the president, I would say, "Don't you dare do a thing until this criminal investigation and prosecution's over."
REP. VAN HOLLEN: Well, let me ask you -- it was more than two months after this initially broke that Scott McClellan in another statement said we have no information in the White House about any of these disclosures.
Before you made that kind of statement, wouldn't you undertake some kind of investigation?
MS. TOENSING: Well, I'm not here to answer for Scott McClellan. I don't know what was in his mind --
REP. VAN HOLLEN: But it's amazing. I mean, there's -- one issue has to do with once the criminal investigation was started. But a long period of time went by when no administration -- administrative action was taken. And as I understand your response to the question by Ms. Watson, you would agree that that kind of sort of investigation goes on routinely when there's been a disclosure of classified information. Does it not?
MS. TOENSING: It can and it cannot. I mean, I certainly wouldn't have done it in the brouhaha that occurred within a week of the -- Bob Novak's publication.
By the way, Bob Novak was not the first person to say she was covert. That was David Corn who printed that she was covert. All Bob Novak did was call her an operative.
REP. VAN HOLLEN: Well, this was more than a -- this was a period of two months when there was lots of questions and everyone was trying to find out what was going on. The CIA had said that, you know, this was an unauthorized disclosure. The president of the United States said -- and I quote -- in -- "This is a very serious matter, and our administration takes it seriously."
Do you agree that this was a serious matter?
MS. TOENSING: Well, I think an outing, as somebody's career being affected, is of course a serious matter. The issue is whether it was done -- if the outing was done intentionally, under the criminal law. That's what I've written about, always.
REP. VAN HOLLEN: Okay. I understand. And I understand your point under the criminal law.
The other question, though, is why people didn't take action under the non-criminal law as part of safeguarding secrets at the White House. And I understand your focus is on the other issue, but I got to say it's stunning that the White House would tell us they had no information about this two months after the first disclosures, and we hear today that they never conducted any investigation. I mean --
MS. TOENSING: But see, I would agree with you that it was a bad situation that happened. But I say shame on the CIA, not -- the briefer did not tell anybody at the White House that -- they weren't --
REP. WAXMAN: How do you know that? How do you know that? How do you know the briefer didn't --
MS. TOENSING: He testified to that at the Scooter Libby trial that he --
REP. WAXMAN: The briefer -- which briefer?
MS. TOENSING: Grenier, Robert Grenier.
REP. WAXMAN: And he was the briefer from the CIA?
MS. TOENSING: From the CIA, yes. He was the one --
REP. WAXMAN: And he told -- yes, go ahead.
MS. TOENSING: He said: I talked about Valerie Plame, I talked about the wife with Scooter Libby and the vice president, but I didn't tell them that -- and this was on cross-examination -- he admitted that he had not said that her status was either classified or covert.
REP. VAN HOLLEN: If I could just, Mr. Chairman, find --
REP. WAXMAN: Yes.
REP. VAN HOLLEN: -- do you think White House officials have any obligation at all -- put aside the technical/legal obligation -- as stewards of our national security, when they find out that someone works for the Central Intelligence Agency, do you think they have any obligation to the citizens of this country to find out, before telling the press about it, whether that disclosure would compromise sensitive information?
Don't -- do you think -- just as citizens of this country, wouldn't you want that to be the standard --
MS. TOENSING: I think a press secretary should always tell what's accurate, so I have no --
REP. VAN HOLLEN: I'm sorry?
MS. TOENSING: A press secretary should always tell what's accurate. I have no problem with that.
REP. VAN HOLLEN: Right. But before somebody goes around saying this person's a -- works for the CIA in a kind of -- in a cavalier manner -- and obviously intentional manner, to try and spread this information, you said, for good -- don't you think they have an obligation to the citizens of this country to make some -- this was -- we're talking about the Iraq war, decisions for going to war, whether or not Saddam Hussein was trying to get nuclear weapons material. Before they disclose the identity of somebody who works in the nuclear nonproliferation area of the CIA, don't you think they have some obligation for -- and to demonstrate the good judgment to find out if that would disclose sensitive information? That's my question.
MS. TOENSING: Well, it could be. But I don't particularly think that, that a red flag would go off, because those of us who work in government all the time know people who work at the CIA and talk with people who are at the CIA. So you wouldn't necessarily say --
REP. VAN HOLLEN: But we don't -- all of us go -- but we don't -- all of us go around trying to use that information with reporters for the purpose of discrediting somebody --
MS. TOENSING: But -- let me just say, my -- do you want me to tell you my experience?
REP. VAN HOLLEN: Sure.
MS. TOENSING: Because I've, as Mark has, represented people who are covert. And I've asked them, since all this occurred, well, would you ever have a desk job at being covert at Langley? And they laugh at me. You know, I don't know. I've never been covert. I've represented people, and this is what they tell me, so --
REP. WAXMAN: The gentleman's time has expired.
REP. VAN HOLLEN: Thank you.
REP. WAXMAN: I want to thank both of you.
Mr. Zaid, I had other questions for you.
Let me just ask you one quick one. If you had clients like Fleischer and Martin and Libby and Cheney and Rove -- let's say they were worried because they disclosed information that they shouldn't have disclosed -- wouldn't you tell them that they were treated a lot better than most people -- (audio break) -- classified information?
MR. ZAID: They're treated a lot better than many of my clients, some of whom have testified before you, like Lieutenant Colonel Anthony Shaffer, who did lose his security clearance and his job at the Defense Intelligence Agency for incurring $67 in cellular phone bills and a couple of other petty issues like stealing pens from the U.S. embassy when he was 14 years old 30 years ago. So, yes, I would say there's quite a number of people who have fared a great deal better than many of my clients. But if they want to hire me, I'm -- I represent Republicans and Democrats, so I don't have any problems. (Laughter.)
REP. WAXMAN: As you should, as you should.
MS. TOENSING: Me, too, me, too.
REP. WAXMAN: As you should. Their double standard doesn't make any difference. (Laughter.) But you're both consul, and everyone's entitled to representation.
I want to thank you both for being here. Ms. Toensing, I just only can say that we are pleased to accommodate the request of the minority to have you as a witness.
And some 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 that information, and we're going to hold the record open to put in other things that might contradict some of what you had to say.
And the other thing I'll say is that when we heard from Mrs. Wilson and we've heard from Fitzgerald, and I talked personally to General Hayden, they have a different view as to what is a protected agent than you do, and your knowledge is based on writing the law 30 years ago.
But we appreciate your being here, and I'll --
MS. TOENSING: Well, don't date me that far. I was 25.
REP. WAXMAN: (Laughs, laughter.) Well, we'll check that fact out also, but -- (laughter) -- but I -- if I'm incorrect, my apologies.
The committee stands adjourned. (Sounds gavel.)
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