What About the Ten Week Gap?

Rep. John Conyers

Going back a couple of years, I wrote two letters on September 29, 2003 about Treasongate. The first was a public letter (pdf) -- to the Department of Justice asking for a Special Prosecutor (I think I was the first Member of Congress to ask, but I have no illusions that my letter forced their hand).

The second (pdf) was not a public letter. It was to Central Intelligence Agency Director George Tenet. I was troubled by reports that the DOJ was, to put it mildly, being less than responsive to the CIA concerns about the leak. The response I received (pdf), reported way back then by Josh Marshall of Talkingpointsmemo on a Friday night (it is amazing how I always get the most valuable responses to my letters on Friday nights), added some stunning detail to the Justice Department's footdragging. Mr. Marshall reminds us about the story today.

The letter indicates that the Central Intelligence Agency was repeatedly stonewalled by the DOJ and, in fact, couldn’t even get their letters answered or calls returned. Here are some details:

-- On July 24, 2003, a CIA attorney left a phone message for the Chief of the Counterespionage Section of the Department of Justice noting his concern with recent stories apparently exposing the identity of Valerie Plame, an employee of the agency working under cover. There was apparently no response from the Department.

-- On July 30, 2003, the CIA reported to the Criminal Division of the DOJ a possible violation of criminal law concerning the unauthorized disclosure of classified information. There was apparently no response from the Department.

-- The CIA again transmitted their concerns by facsimile on September 5, 2003. There was no response.

-- On September 16, in accordance with the Agency’s standard practice in these matters, the CIA advised the Department that it had completed its own investigation of the matter, provided a memorandum setting forth the results of the investigation and requested that the FBI undertake a criminal investigation of the matter.

-- Finally, on September 29, 2003–sixty-seven days after the initial concerns were expressed by CIA employees–the DOJ responded and advised the CIA that the Counterespionage Division had requested that the FBI initiate an investigation of this matter.

Recently, it was revealed that the White House was given a 12-hour “heads up” from the Department of Justice about the investigation at the request of then-White House Counsel Alberto Gonzales. Media reports gave the White House an even earlier forewarning. This, of course, runs counter to every other prosecution I have followed. Typically, and most recently during the Enron investigation, once it is determined that the White House is in possession of relevant information or documents, an immediate notification is sent to the Counsel’s office and the Counsel’s office, in turn, sends an immediate notification to the White House staff to preserve all documents and records. That didn’t happen here.

Why? And what did the White House do during those 12 hours anyway?
Collectively, these disclosures appear to demonstrate that on at least two separate occasions, DOJ personnel acted to permit delays in the investigation, which may have resulted in the loss or destruction of critical evidence. That is why I, and nine of my Judiciary Committee colleagues, have written today to the Department’s Inspector General asking for an immediate investigation to examine the extent that this course of conduct and other delays by the Department are consistent with standards of prosecutorial conduct and integrity. The letter (via Rawstory) is here.

A final twist: Congressional oversight. The Republican Majority in Congress has been absurdly lax in investigating misdeeds by this White House, including this emerging scandal. Yesterday, the Chairmen of the House and Senate Intelligence Committees announced they would be holding hearings on this. It appeared the Congress would begin doing the real work needed on this. Maybe they would look at the Justice Department's footdragging on this.

Then I read the fine print (via DailyKos):

“[Sen. Pat Roberts (R-KS) spokeswoman Sarah] Little said the Senate committee would also review the probe of special prosecutor Patrick Fitzgerald, who has been investigating the Plame case for nearly two years.”

First, it was an attack on Joe Wilson. Then, they attacked his wife. Then, they attacked the press for covering the story. Now, it appears the Republican attack machine has set its sights on the prosecutor.

The Raw Story | Judiciary Democrats seek investigation into why probe took so long; Sixty-seven days?

Michigan Democrat John Conyers and nine Democrats on the House Judiciary Committee issued a letter to the U.S. Inspector General calling for an investigation into a 12-hour delay between the Justice Department learning of the outing of a CIA agent and telling the White House to preserve documents, RAW STORY has learned.

Perhaps more significantly, however, Judiciary Democrats point to the 67 day gap between the time the CIA called the Justice Department to investigate the CIA outing and the time that the Justice Department directed the FBI to investigate the matter.

"It appears the now infamous 12 hour delay the Justice Department granted the White House before issuing an order to preserve documents was not an isolated instance," Conyers remarked. "I received information from the Central Intelligence Agency indicating a pattern of foot dragging by the Justice Department before it would commence a criminal investigation, or even respond to CIA requests."

"While the Republican Congress prepares to launch hearings, which appear to be fishing expeditions designed to discredit the Special Counsel investigating this matter, it defies reason that it would not investigate the DOJ's obviously partisan administration of justice," he added.

A letter written to the U.S. Inspector General follows.

#
July 26, 2005

Dear Inspector General Fine:

We write to request that you immediately commence an investigation of the Department of Justice's handling of the investigation of the leak of the identity of a covert CIA operative's identity by high-ranking Administration officials. Press reports and other information obtained by House Judiciary Committee Democrats appear to demonstrate that on at least two separate occasions, DOJ personnel acted to permit delays in the investigation, which may have resulted in the loss or destruction of critical evidence.

First, over this past weekend we learned that then-White House Counsel Alberto Gonzales received what appears to be a "heads-up" about the commencement of the investigation from Justice Department officials in the evening of September 29. Through White House staff, he asked DOJ personnel if it was permissible to wait an additional 12 hours to notify the White House staff of the investigation and presumably direct the staff to preserve all relevant documents and records relating to the inquiry. According to Mr. Gonzales, "Department of Justice lawyers" gave their assent to this delay:

I specifically had our lawyers go back to the Department of Justice lawyers and ask them, "Do you want us to notify the staff now, immediately or would it be okay to notify the staff early in the morning?" And we were advised, go ahead and notify the staff early in the morning, that would be okay.

Notwithstanding this request, Mr. Gonzales informed the White House Chief of Staff Andrew Card about the investigation. It is not yet known who the White House Chief of Staff advised about the investigation prior to the Counsel's official notification twelve hours later.

For example, this twelve hour head start is a clear and troubling departure from Department practice. When White House contacts with Enron became essential to that investigation, then-Deputy Attorney General Christopher Wray immediately directed the White House to preserve all e-mails, memos, notes, letters and other documents from Enron employees or "any individual acting officially or unofficially, directly or indirectly on behalf" of the company. Less than an hour after receiving the directive, Mr. Gonzales issued an "administrative alert" directing officials to comply.4

Second, we previously received information about a similar delay with respect to the original criminal referral of this matter by the Central Intelligence Agency. In a letter to Ranking member Conyers, dated January 30, 2004 (enclosed), the CIA describes repeated delays and inaction by the Department. The Agency notes that Executive Order 12333 requires the Central Intelligence Agency to report to the Attorney General "possible violations of criminal law." Pursuant to this requirement, according to the letter, the CIA did the following:

On July 24, 2003, a CIA attorney left a phone message for the Chief of the Counterespionage Section of the Department of Justice noting his concern with recent stories apparently exposing the identity of Valerie Plame, an employee of the agency working under cover. There was apparently no response from the Department.

On July 30, 2003, the CIA reported to the Criminal Division of the DOJ a possible violation of criminal law concerning the unauthorized disclosure of classified information. There was apparently no response from the Department.

The CIA again transmitted their concerns by facsimile on September 5, 2003.

On September 16, in accordance with the Agency's standard practice in these matters, the CIA advised the Department that it had completed its own investigation of the matter, provided a memorandum setting forth the results of the investigation and requested that the FBI undertake a criminal investigation of the matter.

Finally, on September 29, 2003-sixty-seven days after the initial concerns were expressed by CIA employees-the DOJ responded and advised the CIA that the Counterespionage Division had requested that the FBI initiate an investigation of this matter.

Thus, it appears, that not only did DOJ personnel countenance a 12-hour delay in notifying White House staff to preserve all records (while the White House Chief of Staff was given a heads up of the existence of the investigation), but that the DOJ also appears to have ignored repeated entreaties from the CIA to initiate a law enforcement investigation into this matter several months before hand. We would therefore urge you to examine the extent that this course of conduct and other delays by the Department are consistent with standards of prosecutorial conduct and integrity.

Please respond to us at your earliest convenience though the Judiciary Committee Minority Office, 2142 Rayburn House Office Building, Washington, DC 20515.

Portions of Press Briefing by Scott McClellan - July 26, 2005

WhiteHouse.gov

1:16 P.M. EDT

......

Go ahead, April.

Q Scott, on another topic, former President Bill Clinton spoke to the "Today Show" recently and he basically called the CIA leak issue terrible. And he said, "Rove is a brilliant political strategist and he's proved brilliantly effective at destroying Democrats, personally." He says, "I mean they've gotten away with murder and he's really good at it. He's good at playing psychological head games that damage our side." What are your comments to that?

MR. McCLELLAN: What I've said previously, and I don't have anything else to add to what I've said previously.

Q Former President Clinton, a friend of the first President Bush and a friend of this President Bush, has said "they've gotten away with murder."

MR. McCLELLAN: Well, thank you. And you know our response on questions related to the investigation.

Q This is not a question. I'm asking you what are your thoughts as it relates to this quote from a former President of the United States.

MR. McCLELLAN: That's a question.

Go ahead, Connie.

......

Q Scott, in the wake of the Valerie Plame incident, on which you will not comment, intelligence officials have indicated there's a growing concern among operatives in the field, a fear that they might be the targets of political manipulation. And they have indicated that something must be done on the part of the White House to help allay these fears. And given that these people are in the forefront of the war on terror, isn't it necessary to do something more than simply stonewalling all discussion of the incident in order to restore confidence?

MR. McCLELLAN: And I'll reject your characterization. What we're doing is helping to advance the investigation forward. And the President said he's not going to get into trying to draw conclusions based on reports in the media. Let's let the investigators complete their work. And that's what we've said, so I'll reject your characterization. We have for a long time said that we want to help them get to the bottom of this and the best way to do that is to cooperate fully in that investigation. And that means not commenting on it here from this podium.

......

END 1:57 P.M. EDT

House Intel Chief Weighs Leak Legislation

By Katherine Shrader / Associated Press

WASHINGTON - The House Intelligence Committee will consider crafting legislation to help the Justice Department prosecute individuals who leak classified information, the panel's Republican chairman said Monday.

House Intelligence Chairman Peter Hoekstra, R-Mich., told an audience at the conservative Heritage Foundation that deliberate leaks of classified information have "probably done more damage to the intelligence community" than espionage. He said he wants to create a culture where "zero tolerance" is the norm.

"It's time there is a comprehensive law that will make it easier for the government to prosecute wrongdoers and increase the penalties, which hopefully will act as a deterrent for people thinking about sharing information," he added.

Hoekstra's comments came as Democrats called for congressional investigations into the headline-grabbing leak of a covert CIA operative's identity during the run-up to the Iraq war.

The Justice Department rarely investigates leaks of confidential information, which often come from Congress members or political appointees hoping to influence international policy.

Hoekstra said he plans to hold hearings this year with the CIA, Justice Department and Defense Department on ways to prevent leaks. He said he is considering inviting journalists to testify.

Lucy Dalglish, executive director for the Washington-based Reporters Committee for Freedom of the Press, said her organization would be interested in the issue and any proposed legislation. She said she hoped journalists would be invited to testify.

"People leak or release classified information every day — deliberately," Dalglish said. Defense Secretary "Donald Rumsfeld has a briefing; he is releasing classified information. He is making a choice to do that. It is a very touchy area."

A variety of state and federal laws were crafted in the 1970s and 1980s to prevent the unauthorized disclosure of classified information while leaving some room for whistle-blowers and accidental leaks. The laws do not extend to journalists who report that information, except in rare cases, such as details about wiretaps.

During his speech, Hoekstra made several references to the 1998 disclosure of the intelligence community's ability to monitor Osama bin Laden's satellite phone.

"Were it not for a leak, there is a chance we could have brought Osama bin Laden to justice by now and have a much better understanding of al-Qaida operations," Hoekstra said.

The leak of CIA weapons expert Valerie Plame's identity has taken center stage in recent weeks.

On Monday, 26 Democrats wrote a letter to Senate Majority Leader Bill Frist, R-Tenn., and House Speaker Dennis Hastert, R-Ill., requesting that Congress investigate. They cited press reports examining whether senior Bush administration officials — including White House chief of staff Karl Rove and the vice president's chief of staff, Lewis Libby — may have exposed Plame's identity.

"Americans deserve a Congress that holds Washington accountable for the truth about our national security," said Sen. John Kerry, D-Mass., one of the signatories.

When asked about the investigation, Hoekstra said he hasn't been focused on it.

"We are not chasing newspaper stories" in the committee, he said.

Asked if anyone's security clearances should be revoked while the investigations are ongoing, he said that is a decision for the manager involved — in this case, President Bush.

Democratic Senators Press CIA Leak Probe

By DONNA DE LA CRUZ, Associated Press Writer
WASHINGTON - More than two dozen Democratic senators on Monday asked Congress to investigate the leak of a CIA officer's identity.

"Americans deserve a Congress that holds Washington accountable for the truth about our national security," said Sen. John Kerry, D-Mass., who authored the letter. "Can anyone argue with a straight face that Congress has time to look at steroid use in baseball but doesn't have the will to provide congressional oversight of the leak of a CIA agent's name?"

The letter, sent to Senate Majority Leader Bill Frist, R-Tenn., and House Speaker Dennis Hastert, R-Ill., said the disclosure of CIA officer Valerie Plame's name most likely compromised her safety.

"The United States Congress has a constitutional responsibility to provide oversight of the executive branch, whether a law has been broken or not," the letter said. "It is time for Congress to fulfill that constitutional responsibility in this matter by initiating a thorough investigation."

The letter cited information reported in the press suggesting that White House Deputy Chief of Staff Karl Rove and Vice President Dick Cheney's chief of staff — Lewis Libby — exposed Plame's identity.

The leaking of Plame's identity in 2003 followed public criticism leveled against the Bush White House by Plame's husband, former U.S. Ambassador Joseph Wilson. He suggested the administration had manipulated intelligence to justify going to war in Iraq. A criminal investigation into the leaks is ongoing.

Among the senators who signed the bill were Carl Levin and Debbie Stabenow of Michigan, Hillary Clinton and Charles Schumer of New York, Jon Corzine and Frank Lautenberg of New Jersey, Barbara Boxer and Diane Feinstein of California and Dick Durbin and Barack Obama of Illinois.

Lautenberg introduced a "Web Calendar" being used by Democrats to show the number of days that have passed "since the White House leaked the identity of a CIA agent," the senator said.

"There is no oversight of the White House in this Congress," Lautenberg said. "None — it's a free pass. And that is dangerous for the country."

Lautenberg also spoke on Attorney General Alberto Gonzales' statement Sunday that he notified White House chief of staff Andy Card after the Justice Department opened an investigation into who disclosed Plame's identity, but waited 12 hours to tell anyone else in the administration.

"Was there a 12-hour shredding party at the White House that night?" Lautenberg asked. "We don't know, but I hope that the prosecutor examines this troubling disclosure."

Congress plans to scrutinize Plame-related issues - Boston.com - George W. Bush - News

By David Morgan | July 25, 2005

WASHINGTON (Reuters) - Congress will conduct a series of hearings on national security and espionage issues raised by the CIA-leak controversy surrounding senior Bush adviser Karl Rove, officials said on Monday.

The House Permanent Select Committee on Intelligence plans hearings on potential national security threats posed by leaks, including leaks to the media, and will aim to toughen legislation barring the unauthorized disclosure of classified information.

"It's time there's a comprehensive law that will make it easier for the government to prosecute wrongdoers and increase the penalties that hopefully will act as a deterrent," said Rep. Pete Hoekstra of Michigan, the panel's Republican chairman.

Media leaks and the covert status of espionage officials have become politically charged issues with the controversy over Valerie Plame, whose identity as a CIA agent was leaked in 2003 after her diplomat husband Joseph Wilson accused the White House of exaggerating intelligence to justify the Iraq war.

A Time magazine reporter said he learned about Plame's identity from Rove, deputy White House chief of staff and chief architect of President Bush's re-election. Time reporter Matthew Cooper also said he discussed Plame and Wilson with Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff.

It can be illegal for a government official to knowingly disclose the identity of a covert CIA operative.

Democrats, who have urged Bush to fire Rove or revoke his classified clearance, stepped up political pressure on Republicans on Monday by calling for a formal congressional investigation of the Plame leak.

'CONSTITUTIONAL RESPONSIBILITY'

"The United States Congress has a constitutional responsibility to provide oversight of the executive branch, whether a law has been broken or not," the 26 senators said in a letter.

Speaking earlier at a forum hosted by the conservative Heritage Foundation, Hoekstra said his committee would begin hearings as early as September that would include testimony from CIA, Pentagon and Justice Department witnesses.

He said he would also hope to invite witnesses representing the news media.

Intelligence officials have long complained that leaks to the media have damaged U.S. spy operations, including efforts to track al Qaeda leader Osama bin Laden.

Hoekstra described current laws governing unauthorized disclosure as a limited "patchwork" of statutes. Past attempts to craft more comprehensive measures have ended in failure. But Hoekstra said concerns fostered by bombings in Madrid, London and Egypt have created a more favorable political climate.

"I don't have any legislation yet," Hoekstra said. "That's what we have the hearing process for, to design and determine exactly what legislation might look like."

Meanwhile, Hoekstra's counterpart in the Senate, Republican Sen. Pat Roberts of Kansas, intends to preside over hearings on the intelligence community's use of covert protections for CIA agents and others involved in secret activities.

The chairman of the Senate Select Committee on Intelligence could hold hearings on the use of espionage cover soon after the U.S. Congress returns from its August recess, said Roberts spokeswoman Sarah Little.

Little said the Senate committee would also review the probe of special prosecutor Patrick Fitzgerald, who has been investigating the Plame case for nearly two years.