District of Columbia Appropriations Act, 2004-Resumed

DISTRICT OF COLUMBIA APPROPRIATIONS ACT, 2004—RESUMED

Mr. SCHUMER. Mr. President, first, let me thank our leader from South Dakota for his right-on-the-money words as well as his leadership on this issue with so many others. I think I speak for every Member on our side when I say we are proud to follow his leadership, and every Member of the Senate, that he is just a fine leader and fine man.

This is a sense-of-the-Senate resolution. As our distinguished Democratic leader stated, it simply says that the rule of law should be upheld. When I read in the Novak column that an agent was outed, I was just furious. My first reaction was to call the FBI and send them a letter asking that there be a thorough investigation. I was told that before anything such as this could happen, the CIA had to answer 11 questions on a certain form that would show the law was—and I am not sure of the standard; it might be probable cause but violated, or at least the significant possibility of it being violated. Evidently, last week the CIA sent those 11 pages back and asked for an investigation.

There are so many points to make, and I will make a few. First, the dastardliness of this act; it is despicable. I have been in Washington 22 years. I have never seen anything quite like this. To reveal the identity of an agent, or an analyst, the law does not matter—and I know that it was said on television yesterday by Mr. Novak, well, she was not an agent, she was an analyst and therefore it does not matter, but the law is very clear, and if someone is covert, a member of the CIA, and their identity is revealed, that is a crime.

Furthermore, we do not know if she was an analyst or an agent. If we are going to believe Mr. Novak on this part of it, then maybe we should believe him on all the rest of it. Everyone would agree that some high administration officials did a very terrible thing. To take this agent, analyst, this covert individual, who has served their country, and expose them, endangers them, endangers their sources and their contacts. As my good colleague from California has said, it puts a halt on their career and endangers the security of this country.

Furthermore, we have always felt that our intelligence agents are on the front lines. I was told earlier today by my colleague from Florida, Mr. Nelson, that the first American killed in Afghanistan was not a member of the Armed Forces but a member of the CIA. In a post-9/11 world, our intelligence sources are so important. What does it say to all of those thousands of men and women who serve us that if they tell the truth and somebody high up does not like it either they or their family can be outed? It goes to the very heart of what that Agency is all about. It is no wonder that the CIA, its employees from top to bottom, were just furious about this activity.

I do not know where this will lead. Rumors abound. If the Washington Post is correct and six media outlets were called, it is going to be pretty hard to keep it a secret as to who made the calls, where and when, but that is not the point. The point is, this crime demands a solution. This outrageous act demands justice.

To hear Mr. McClellan of the White House say yesterday, first, there are 50 leaks every week, belittling this, made my blood boil. This is not a typical leak. To reveal a covert operative's name is a crime, not a leak.

Then second, to say, if we find them, we will fire them, well, that is like saying someone in your company is a murderer and all that should happen is they should lose their job. There was a serious crime committed. What makes the crime worse is that it appears on its surface it was committed for reasons of malice, for reasons of stifling debate and dissent. As somebody who has generally been supportive of the President in Iraq, I find it just as outrageous as somebody who might be opposed.

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Mrs. BOXER. The fact is, we now have the DC bill in front of us and we have a legislative way to express ourselves. The thing I want to point out is now there is an attempt to try to demean this incident by saying that the fact that a CIA analyst or agent—we are not exactly sure—was revealed is not such a big deal and does not have much merit to it. I know my friend spoke about that, but I want to pursue a couple of questions.

Is it not the fact that the head of the CIA himself decided this was so egregious, to reveal the identity of Ambassador Wilson's wife, that the head of the CIA, who really serves at the pleasure of President Bush, asked for an investigation by the Attorney General? Is that correct?

Mr. SCHUMER. I would assume that is correct. The bottom line is the CIA has asked for it. This is a very sensitive matter. He is the head of the CIA, so I think it is a pretty good assumption that he asked for it. I think another assumption, that he realized this would ruffle a whole lot of feathers at 1600 Pennsylvania Avenue, at the White House, in the administration, is true. But from what I am told by sources who know what went on there, the obligation to the men and women in the intelligence service transcended any feathers that might be ruffled. It is a pretty courageous act.

Mrs. BOXER. Yes. I just want to point out that to attempt to minimize this crime by saying this woman was probably an analyst and not an agent is unbelievable to me. The fact is, whether she was an agent or an analyst or anything else, was she not undercover? Every time I see her on TV, they cover up her face. I say to my friend, let's not get into the sideshow about was she an analyst or was she an agent. The fact is, she was in a covert situation, was she not, and it is safe to say that the reason her face is covered up is that she was undercover; the reason the CIA asked for an investigation is that they believe a law may have been broken because she was undercover.

I want to make that one point, in addition to the points we made this morning, which is that I hope my colleagues will vote for this amendment. I hope my colleagues on the other side will not have a dual sense of when an independent counsel should be appointed: There is a real estate deal somewhere; there is an independent counsel. There were no lives on the line there. This is a situation where someone who is undercover has been revealed as a way to get back at her husband who happened to bring back the news that the administration didn't want to hear—that in fact Iraq was not purchasing, at least in this particular case, from Niger any nuclear materials.

We have a circumstance where, faced with this, the new defense is: She was just an analyst; she wasn't an agent. I want to make the point, this woman was in the CIA. Her career has no doubt been destroyed. She was undercover. We do not see her face on TV. The fact is, the CIA asked for an investigation. And what my friend is saying today is, we need a more independent investigation. We don't want politics to play a role in this investigation. We want to remove it, even though the
Attorney General will still be in charge of an independent or a special counsel, as we call it. A special counsel will have a little more independence than just getting it over to the Justice Department.

Mr. SCHUMER. I thank my colleague.

I wish to clarify a few points that should be made to everyone. The reason there is a debate about an agent or analyst is that is what Mr. Novak said on one of the shows, that is what we were told earlier today.

I have something from CNN.com. They say that other sources told CNN on Monday—yesterday—that Plame was an operative who ran agents in the field. Let me repeat that. Other CIA sources told CNN on Monday that Plame was an operative who ran agents in the field. I don't know if Novak is right or if these other sources are right; that is the very point.
The issue of whether she was an agent, an operative, or an analyst is beside the point. The law was broken.

The law is clear, and while it says covert agent but defines agent as an officer—I am paraphrasing—employee, present or retired, of an intelligence agency whose identity has not been previously publicized, revealed, that is the point.

Once again, my colleague from California makes a very astute point. No one is revealing the face of this person. No one was revealing the name of this person. The bottom line is it is quite clear the law was broken. The only question we don't know is who broke it. What we are trying to do—and again the Senator from California is exactly right—is keep the politics out of this issue.

The idea that when a law is broken and someone calls for a full and thorough investigation, and the mechanism to do it, is politics is absurd. I will tell you what politics is—despicable and nasty politics. It was revealing this person's name because they did not like what her husband said. That is the politics of this issue.

Mrs. BOXER. Mr. President, will my friend yield further?

Mr. SCHUMER. I will be happy to yield.

Mrs. BOXER. I wish to make a point to underscore this discussion. This leaking of a name is, on its face, a crime. The person who did this deserves to be punished because to think that someone would punish someone's family—they didn't like what Ambassador Wilson said: How can we hurt him? How can we sting him? How can we burn him? We will hurt his wife. We will out her; that will ruin her chances. And that will send a chilling message to Ambassador Wilson: A, be quiet, maybe this will go away; and, B, it sends a chilling message to everyone. That is why what you are doing is so important.

This is an incident that cannot be swept under the rug. Whether it is a Democratic administration or a Republican administration matters not because this endangered someone, and it sends a chilling message to anyone who might bring bad news to this administration, who might disagree with their policy in Iraq.

I say to my friend, he is right on target. If this does fail in a party-line vote—and I pray it does not, but if this fails in a party-line vote, unfortunately, this will become a bigger and bigger political issue because I, for one, am not going to stop focusing attention on it. As a woman who has all my life been in jobs that are perhaps a little bit different than other women, I have tried to say we can do it. This attack on this woman who was on the ladder, obviously, in the CIA, was not only a crime, it was unjustified, and it sends a terribly chilling message to other women out there that you can do the greatest job in the world but, gee, if you are married to someone who might say something controversial, you are going to be outed.

What about the message—I close with this—it sends to other agents out there, other agents who may be working on issues and bringing back information that the administration doesn't want to hear because maybe it does not comport with what they want to be known as the facts? What kind of message does this send? Are they going to take the risks? As Senator Harkin said, we are going to win this war against terrorism by the quality of our intelligence. And here we have the White House itself that says it is leading the fight against terrorism. We stood by their side continually on this, as we should. Here they are, in essence, outing someone who could be working in ways to save our people from another terrorist attack, from al-Qaida, and whatever else.

I am so pleased my friend has been so stalwart on this issue. Anything he needs from this Senator from California to help him, I remain available to do whatever I can do to bring justice to this family.

I yield back the time.

Mr. SCHUMER. I thank my colleague from California for her strong, intelligent, and heartfelt words.

I would like to make just one other point, and this is a very important point I have not talked about before, so I hope my colleagues will listen. People ask, Why ought there be a special prosecutor? Why not let Justice do the job?

There are obvious reasons. Attorney General Ashcroft is a close political associate of the President's. If this goes high up into the White House, there is obviously the appearance of a conflict, if not a conflict itself. There is nothing wrong with the President appointing a close political associate as Attorney General. Some have. John Kennedy did. Bill Clinton didn't.
The other model is to appoint someone at some distance, someone removed, a professional law enforcement person. But when you appoint someone who is close, you lose any vestige of independence when something sensitive comes up, making the need for special counsel more important.

A special counsel is not a runaway counsel. The independent counsel law expired because people were worried about that.
It is still appointed by the Attorney General. The differences are threefold. No. 1, the day-to-day running of the investigation is not under the Attorney General or the staff that is directly under him with the chain of command going up.

Second, a very important prophylactic measure: Anytime the Attorney General should reject the request of the special counsel—to subpoena someone or bring someone to a grand jury or file some charges—a report has to be made to Congress.
That is an extremely important and prophylactic measure.

Third, special counsel, when they have been appointed—and by the way, Archibald Cox and Leon Jaworski, people like them, fell under a law very similar to the President's special counsel law because that was before the independent counsel was allowed and after 1999. After it expired, Justice passed this regulation allowing special counsel again. But they have stature. They are not going to be pushed around. Everyone will see who is appointed.

Obviously, if the Attorney General should appoint someone who doesn't have the stature, doesn't have the political independence, they will not be given the respect that someone of stature and independence would. But because it is public, that is generally what happens. A Warren Rudman or a John Danforth or a George Mitchell or a Sam Nunn would be ideal type candidates as independent counsel.

Let me show an example. This is the point to which I want people to pay attention. We just had an example of why we need a special counsel. This was reported, as I am told, by Mr. McClellan. We learned this morning that the White House
Counsel, Mr. Gonzales, had sent an e-mail to all White House employees to preserve all their records, their logs, their e-mails and things like that. It was a good thing to do.

But what Mr. McClellan just confirmed is that he was asked by the Justice Department to do it last night. He said: Can I wait until the morning? And the Justice Department said yes.

Did anything happen between last night and this morning? I don't know. Nobody knows. You can be sure, if it was a special counsel, that ability to delay for several hours the sending out of this very important e-mail wouldn't have happened, or it only would have happened with an extremely good reason.

But when you don't have a special counsel, when the White House Counsel makes the request, it is given the benefit of the doubt. Frankly, at least from the allegations we hear the White House Counsel is in the same place as the person or persons who did this dastardly act. So if there was ever an example of why we need a special counsel, it just came out when Mr. McClellan told us about this delay in sending out the e-mail. For all we know, and this is just hypothetical, rumors went throughout the White House that there will be an e-mail this morning—and this is just hypothetical and, hopefully, it didn't happen—but maybe that somebody who did it didn't save what they were supposed to save, inadvertently threw them out. Who knows?

Again, if the special counsel were there, it is likely not to have happened. And if it did happen that the delay was sanctioned, people would have more faith that there was a justification for it.

So we need a special counsel. It is not a perfect mechanism, but it is the only mechanism available that has some semblance of independence, of fairness. Along with my 15 cosponsors, we are requesting a sense-of-the-Senate resolution that that be done.

I remind my colleagues, this is a sense of the Senate. It is basically a sense of the Senate that in a very real sense says: Do you want to get to the bottom of this, and do you want to do it fairly and not politically? It doesn't require it to happen.

Excuse me, we have now 22 cosponsors.

It doesn't require it to happen, but at least we go on record, this body, as saying there ought to be a full, fair, and independent investigation—and a fearless investigation, I would add, an investigation that will go wherever it leads.

I repeat, I have no idea who did this. There are names bandied about. If it is true that six people in the media were called, this is not going to be a top secret, even though the media people will not want to reveal that they were called because of their sources. But a special counsel should be able to get to the bottom of it. Any counsel should be able to get to the bottom of it if, A, they really want to; B, they don't fear getting to the bottom of it; and, C, they are not told by somebody else not to, subtly or otherwise.

I guess that is another point I would make. What this case is about in many ways—not every way, there are so many ramifications to it already—the reason it has resonance is not only that what was done was despicable, but it relates to a methodology in Washington that has become too current lately, which is knee-capping people with whom you don't agree instead of having an open debate, saying you think this; I think that; let's see what the people decide. To call into question their character or patriotism or anything else—we have seen that in many different areas in the last year or two.

So it has tremendous resonance, but ultimately one thing this is about is the ability to tell the truth without being hurt for telling that truth, hurt professionally. Isn't that, indeed, the reason we need a special counsel? If there is a career diplomat in the Justice Department who is doing this investigation, maybe he or she, even if told nothing, will say: Hey, if I bring this all the way to the top where I think it ought to go, it might hurt my career. Who knows? With the special counsel, if it were a John Danforth or a Sam Nunn, they would not worry about their career. Their integrity is rock ribbed, and they will take it where it leads.

I hope we will allow a vote on this amendment. I don't know what the other side is afraid of, or whoever is afraid, to not allow a vote on this amendment. It is a simple sense-of-the-Senate resolution, and I would argue it will be more foretelling if this amendment is being blocked from being voted on. It will be very revealing if this amendment is blocked because it is saying somebody, somewhere, is afraid of where this investigation would lead.

I think if a point of order is raised and not overturned in any way, then—I guess it cannot be overturned. If the point of order is raised and a vote is prohibited, it is going to say something. It is going to say those who raise the point of order are afraid of where the truth may lead. That is one of the things we all worry about.

Once again, I say to my colleagues that the very fact that the e-mail which went out this morning was asked for last night, and delayed for several hours, raises questions. They may be answered; they may not be. But that is the kind of question that will come up every day in an investigation if we do not have a special counsel.

I thank my colleagues from South Dakota and California and the so many others who spoke this morning—the Senators from Nevada, Iowa, and Florida.

All I can say is for the sake of this country, for the sake of fairness, and for the sake of the continuing rebuilding and the viability of our intelligence services, I hope this amendment passes. I hope no one will block it on a parliamentary procedure called "a point of order." I hope we will get to the bottom of this dastardly act and find out who put the integrity of the intelligence services and possibly the lives of people on the line for simply the purpose of malice or the purpose of preventing the truth from coming out.

I am going to yield as much time as he would like to my colleague from Illinois, a member of the Intelligence Committee.