Emergency Supplemental Appropriations for Iraq and Afghanistan Security and Reconstruction Act, 2004

EMERGENCY SUPPLEMENTAL APPROPRIATIONS FOR IRAQ AND AFGHANISTAN SECURITY AND RECONSTRUCTION ACT, 2004

AMENDMENT NO. 1872

Mr. SCHUMER. Mr. President, I have an amendment I will be offering shortly. First, I am going to discuss it for a little bit to inform colleagues about it. The amendment I will offer expresses a sense of the Congress that the Attorney General should appoint a special counsel to conduct an independent investigation of the leak of a CIA agent's identity. The bottom line is this—and we have been through this on the floor, so I will not go over the basic facts, other than to say that, to me, this act—disclosing the name of an undercover agent—is dastardly. It places a gun to the head of that agent; it puts in grave danger operatives that agent may have had while he or she was undercover and, of course, perhaps most important of all, it says to every member of our intelligence community who puts themselves on the line, just as our soldiers do, if you go seek the truth, report the truth as you see it, and somebody upstairs doesn't like it, you are putting yourself or your spouse in real danger.

To me, this is something that is not befitting of a great power, not befitting not only because of its immorality—and I believe it is immoral to do such a thing—but also for practical reasons, because when great powers, as history shows us, lose touch with what is actually happening and begin to delude themselves one way or another, they lose power.

This country has had as its hallmark truth, open debate, and has had as its hallmark, if you disagree, speak out. That, by the way, has been one of the great things about our intelligence services, certainly since World War II. The CIA, the DIA, and many of the other intelligence services are known for reporting the truth. That is why they are somewhat insulated. That is why the CIA was separated and made its own agency. The day this country cannot gather the truth, at least as seen by the brave men and women representing us in the intelligence services, is the day we begin to decline. Yet that seems to be what has happened here.

Ambassador Wilson went to Niger and reported the truth, as he saw it, on a mission he was asked to undertake, and somebody didn't like what he said. First, they tried to suppress it, and then when they couldn't because Ambassador
Wilson had the courage to go forward, it seems that somebody—it seems likely maliciously this was done but perhaps not; we don't know; we don't know all the facts—gave to Mr. Novak the name of his wife and identified her as an agent of the
Central Intelligence Agency.

That, in itself, is a crime. It doesn't matter what the motivation is. That is a serious crime punishable by up to 10 years in prison. So it is a very serious act.

Democrats, Republicans, liberals, conservatives—people from every corner of the country—are totally aghast that this
happened.

Mr. McCAIN. Will the Senator yield for a question?

Mr. SCHUMER. I will after I finish my basic outline. I have great respect for my friend from Arizona and will yield for a question at the conclusion of what I have to say.

Mr. McCAIN. I thank the Senator.

Mr. SCHUMER. I may be a little while. He might want to take his seat. He is a strong man. He can stand if he likes. I just want to inform him.

There was a view that we ought to get to the bottom of this situation. I think, again, that was universally held. Our President himself stated it. However, when we looked at the mechanism to get to the bottom of this, there didn't seem to be a very good one. You couldn't go to the inspector general of either the Justice Department or the Defense Department because they can't look at the White House. The independent counsel law had lapsed, and to allow the Justice Department itself to conduct the investigation seemed to many of us at the outset to pose, at the very least, an apparent conflict of interest that now seems to be a very real conflict of interest given the facts that have come out about the Attorney General's relationship with Karl Rove and some of the others who, it is bandied about with no backing in the sense there is proof, but
there are signs, have said that he was involved. So many of us called for a special counsel. A special counsel is still allowed.

Special counsel was the type of law that allowed Archibald Cox and Leon Jaworski to get to the bottom of Watergate. A special counsel does not run into the problem that the independent counsel did: that it can run amok and just look at everything under the Sun because it is still under the Attorney General's control ultimately. If that special counsel were to decide to, say, investigate something that went on in Indonesia unrelated or something related to the President's campaign finances, the Attorney General could snip it right off. That was the main objection to the independent counsel law.

The advantage of the special counsel is very simple, particularly if someone of some stature and independence is appointed, such as some of our previous colleagues—Senator Danforth, Senator Rudman, Senator Mitchell, or Senator Nunn. Then there is an assurance of some independence and integrity and, at the same time, the day-to-day operations of the special counsel are not under the control of the Attorney General.

The special counsel, if he or she were blocked by the Attorney General, would at the end of his or her investigation have to report to the Congress that "I wish to interview so and so and the Attorney General said no." Or "I wish to pursue this lead, and the Attorney General said no."

We all know the Brandeisian quote: Sunlight is the great disinfectant and, therefore, as long as this becomes public, there is almost a prophylactic effect. People will be unlikely or be far more reluctant to block an avenue of investigation or the interrogation of a certain witness.

The investigation has proceeded, and it is very clear that all of the things we worry about—we worry about an apparent conflict of interest. That obviously exists. We worry about a conflict of interest that, too, still exists.
By the way, because the Attorney General is a close political friend and associate of the President's, all the more reason that a special counsel was then and still is needed.

There are two models for appointing Attorneys General in this sense anyway. One is to appoint a close friend, confidante, even relative. President Kennedy appointed his brother. That is reasonable to do, but you lose independence. The other is to appoint someone more independent, the Janet Reno model. But in this case, the President chose to appoint someone politically tied to him, someone with a close relationship, so no one even believes there is much independence there. We ask for this special counsel to avoid both apparent conflict and the real conflicts that exist.

Those pleas, done certainly by me earnestly—I am just outraged by what happened, and I think we have to get to the bottom of it no matter where it leads. I called for this investigation on July 22, long before any names such as Rove or some of the others were bandied about because I felt so strongly that whoever did this should be punished. It is a despicable act.
But as the investigation began to unfold, we saw there was an additional problem, and that is that the investigation was not being run very well; that by textbook prosecutorial rules and ways of operating, this investigation had a number of failures.
In fact, our leader, Senator Daschle, and my colleagues Senators BIDEN and LEVIN, and I sent a letter to the President on
October 9 that outlined some of these missteps. I thought I would read the parts of the letter that are relevant.

I ask unanimous consent that the entire letter be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

U.S. SENATE,
Washington, DC, October 9, 2003.

The PRESIDENT,
The White House,
Washington, DC.

DEAR MR. PRESIDENT: We write to express our continuing concerns regarding the manner in which your Administration is conducting the investigation into the apparently criminal leaking of a covert CIA operative's identity. You have personally pledged the White House's full cooperation in this investigation and you have stated your desire to see any culprits identified and prosecuted, but the Administration's actions are inconsistent with your words.

Already, just fourteen days into this investigation, there have been at least five serious missteps.

First, although the Department of Justice commenced its investigation on Friday, September 26, the Justice Department did not ask the White House to order employees to preserve all relevant evidence until Monday, September 29. Every former prosecutor with whom we have spoken, has said the first step in such an investigation would be to ensure all potentially relevant evidence is preserved, yet the Justice Department waited four days before making a formal request for such documents.

Second, when the Justice Department finally asked the White House to order employees to preserve documents, White
House Counsel Alberto Gonzales asked for permission to delay transmitting the order to preserve evidence until morning.
That request for delay was granted. Again, every former prosecutor with whom we have spoken has said that such a delay is a significant departure from standard practice.

Third, instead of immediately seeking the preservation of evidence at the two other Executive Branch departments from which the leak might have originated, i.e., State and Defense, such a request was not made until Thursday, October 1.
Perhaps even more troubling, the request to State and Defense Department employees to preserve evidence was telegraphed in advance not only by the request to White House employees earlier in the week, but also by the October 1st
Wall State Journal report that such a request was "forthcoming" from the Justice Department. It is, of course, extremely unusual to tip off potential witnesses in this manner that a preservation request is forthcoming.

Fourth, on October 7, White House spokesperson Scott McClellan stated that he had personally determined three White House officials, Karl Rove, Lewis Libby and Elliot Abrams, had not disclosed classified information. According to press reports, Mr. McClellan said, "I've spoken with each of them individually. They were not involved in leaking classified information, nor did they condone it." Clearly, a media spokesperson does not have the legal expertise to be questioning possible suspects or evaluating or reaching conclusions about the legality of their conduct. In addition, by making the statement, the White House has now put the Justice Department in the position of having to determine not only what happened, but also whether to contradict the publicly stated position of the White House.

Fifth, and perhaps more importantly, the investigation continues to be directly overseen by Attorney General Ashcroft who has well-documented conflicts of interest in any investigation of the White House. Mr. Ashcroft's personal relationship and political alliance with you, his close professional relationships with Karl Rove, and Mr. Gonzales, and his seat on the National Security Council all tie him so tightly to this White House that the results may not be trusted by the
American people. Even if the case is being handled in the first instance by professional career prosecutors, the integrity of the inquiry may be called into question if individuals with a vested interest in protecting the White House are still involved in any matter related to the investigation.

We are at risk of seeing this investigation so compromised that those responsible for this national security breach will never be identified and prosecuted. Public confidence in the integrity of this investigation would be substantially bolstered by the appointment of a special counsel. The criteria in the Justice Department regulations that created the authority to appoint a
Special Counsel have been met in the current case. Namely, there is a criminal investigation that presents a conflict of interest for the Justice Department, and it would be in the public interest to appoint an outside special counsel to assume responsibility for the matter. In the meantime, we urge you to ask Attorney General Ashcroft to recuse himself from this investigation and do everything within your power to ensure the remainder of this investigation is conducted in a way that engenders public confidence.

Sincerely,

Tom Daschle.

Joseph R. Biden.

Carl Levin.

Charles Schumer

Mr. SCHUMER. I thank the Chair. I am going to read these five steps that, again, fly in the face of good prosecutorial practice:

First, although the Department of Justice commenced its investigation on Friday, September 26, the Justice Department did not ask the White House to order employees to preserve all relevant evidence until Monday, September 29. .    .    .
Second, when the Justice Department finally asked the White House to order employees to preserve documents, White House Counsel Alberto Gonzales asked for permission to delay transmitting the order to preserve evidence until morning and the request for delay was granted.

In both these instances, every seasoned prosecutor knows that is not standard practice. You don't give those who might—underline "might"—want to destroy evidence an opportunity to do so. The first thing a good prosecutor does is gather as much evidence quickly and as broadly as possible.

Third, instead of immediately seeking the preservation of evidence at the two other Executive Branch departments from which the leak might have originated, i.e., State and Defense, such a request was not made until Thursday, October 1.
Perhaps even more troubling, the request to the State and Defense Department employees to preserve evidence was telegraphed in advance not only by the request to White House employees earlier in the week, but also by the October 1st Wall Street Journal report that such a request was "forthcoming" from the Justice Department.

I have talked to prosecutors who flipped their lid at that one. You put in the newspaper that you are going to request evidence of potential suspects? Wow. Something is wrong. Is it done nefariously? I do not know. Perhaps not. But it does not matter. Certainly, the leaker, whoever he or she is, is under a cloud and worried about potential criminal prosecution.

Whether this was done by accident or by design, it does not make a darn bit of difference. It fouls up the investigation to a fare-thee-well.

Fourth, on October 7, going back from the letter, White House spokesman Scott McClellan stated that he had personally determined that three White House officials: Karl Rove, Lewis Libby, and Elliott Abrams, had not disclosed classified information. According to press reports, Mr. McClellan said he had spoken to each of them individually.

What is going on? We have the White House press spokesperson on his own—or maybe with authorization. Did he get it from Justice? I doubt it, but I sure would like to know—goes and interviews the witnesses, or potential witnesses?

He then came to a conclusion and told it to the Nation: They were not involved in leaking classified information, nor did they condone it.

Again, this comes from prosecution 101. A media spokesperson does not have the legal expertise to be questioning possible suspects or evaluating or reaching conclusions about the legality of their conduct.

In addition, by making this statement, the White House has now put the Justice Department in the position of having to determine not only what happened but whether to publicly contradict the White House spokesperson.

Fifth, and maybe most importantly, the letter goes on to say that the investigation continues to be directly overseen by Attorney General Ashcroft, who has well documented conflicts of interest in any investigation of the White House.

So we renewed our plea. Now, let me make two additional points that have not come out since we last spoke about this on the Senate floor. First, we do not know who is in charge. Who is running this investigation? Is it, as some newspaper reports have said, the head of the Counterterrorism Division within the FBI, a gentlemen named Mr. Dion? Is it the head of the FBI, Mr. Mueller? Is it the Attorney General? Is it the Assistant Attorney General in the Criminal Division or somebody else? Who is making the decisions? How the heck can there be a prosecution when we do not know who is in charge?

Then, of course, we do not know if that person is reporting to Attorney General Ashcroft day to day. Is this person available? If the White House press spokesperson will do his own little investigation and tell everyone what happened, how about letting the public at least get an idea from who is doing the investigation not to talk publicly about the details but to let them know what is going on because, when one looks at the press reports, it is either Judge Gonzales or a Justice Department spokesperson or a member of the Justice Department who gets up and says this is what is happening. It is unheard of. This investigation already is so tainted.

So many of us ask, if they are not going to go for a special counsel, which is what should happen, at least Attorney General Ashcroft should publicly recuse himself. He has not even done that. What kind of assurance does the public have that we are going to get to the bottom of this?

Then the President says we may never get to the bottom of it. Well, maybe he is just stating what he thinks, maybe he is just stating what he hopes, or maybe he is sending a signal. I do not know which is which, but he should not have said that.

One day he said he wants to get to the bottom of it, and we should, and that was great. The next day he says, well, we may never know.

So this investigation is fraught with mistakes and errors, whether by design or by accident, that imperil its results, whatever they come to be.

I have never quite seen anything like it. I was on the Judiciary Committee in the House of Representatives for 16 years and have now been in the Senate for 5 years. I am somewhat familiar with how our Federal justice agencies work. In all of my years, I have never seen what happened. We can be sure that if this had happened during the Clinton years, and these mistakes were being made, what we are saying and asking to be done would be mild, would be pablum, compared to what some of my colleagues on the other side would be asking for.

One other point before I get to the substance: This morning's New York Times reported the following, and the headline is,
"Senior Federal Prosecutors and FBI Officials Fault Ashcroft Over Leaked Inquiry." I ask unanimous consent that this
article be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

[From the New York Times, Oct. 16, 2003]

SENIOR FEDERAL PROSECUTORS AND F.B.I. OFFICIALS FAULT ASHCROFT OVER LEAK INQUIRY

(By David Johnston and Eric Lichtblau)

WASHINGTON, Oct. 15.—Several senior criminal prosecutors at the Justice Department and top F.B.I. officials have privately criticized Attorney General John Ashcroft for failing to recuse himself or appoint a special prosecutor to investigate the leak of a C.I.A. operative's identity.

The criticism reflects the first sign of dissension in the department and the F.B.I. as the inquiry nears a critical phase. The attorney general must decide whether to convene a grand jury, which could compel White House officials to testify.

The criminal justice officials, who spoke on the condition that they not be identified, represent a cross section of experienced criminal prosecutors and include political supporters of Mr. Ashcroft at the department's headquarters here and at United States attorneys' offices around the country.

The officials said they feared Mr. Ashcroft could be damaged by continuing accusations that as an attorney general with a long career in Republican partisan politics, he could not credibly lead a criminal investigation that centered on the aides to a Republican president.

Democrats have criticized each step of the inquiry as tainted by Mr. Ashcroft's relationship with the White House.

The investigation is trying to determine who told the syndicated columnist Robert Novak, as he wrote in July, that Valerie
Plame, the wife of a former ambassador, Joseph C. Wilson IV, was a C.I.A. employee. Mr. Wilson was a critic of the administration's Iraq policies.

A senior Justice Department official acknowledged on Tuesday that the question of whether Mr. Ashcroft should step aside had stirred discussion in the department, but said that the dissent was limited and did not reflect the overall thinking of the career lawyers who are in daily control of the leak case. The official said that the option of recusal or referral to a special prosecutor remained "wide open."

The official said that the question of whether Mr. Ashcroft should step aside had been discussed among Mr. Ashcroft's senior advisers, but that so far none of the career lawyers on the case had recommended that the attorney general remove himself.

The official said Mr. Ashcroft had twice gathered his investigative team to urge them to find out who had leaked the identity of the C.I.A. operative and to prosecute that person if possible. "He's angry about this," the official said.

But Mr. Ashcroft and the F.B.I. director, Robert S. Mueller III, operate as major members of Mr. Bush's antiterror team, a closeness that complicates a criminal inquiry at the White House managed by Mr. Ashcroft and Mr. Mueller.

Several alternative approaches have been suggested both inside and outside the Justice Department, the officials said. In one approach, Mr. Ashcroft would recuse himself from the case once James B. Comey, the federal prosecutor in Manhattan, took over as deputy attorney general in either an acting or permanent basis.

Mr. Bush said earlier this month that he intended to appoint Mr. Comey as deputy attorney general. Mr. Comey brings established prosecutorial credentials to the job.

If Mr. Comey took charge, it would avoid the time-consuming prospect of appointing a special counsel who would then have semi-independence to investigate the case, but would still be answerable to the attorney general.

Mr. Ashcroft is aware of the political sensitivity of the case, and aides said he had worked hard to ensure an aggressive investigation.

After a news report indicated that the F.B.I. would move cautiously because of the intense scrutiny, an angry Mr. Ashcroft had an aide call the F.B.I. immediately to let officials there know that that would not be the case, a Justice Department adviser said. "He wants to make certain we're moving with all appropriate dispatch."

Mr. Ashcroft and Alberto R. Gonzales, the White House counsel, have also been under fire for their initial handling of the case. The Justice Department allowed the White House to wait overnight on Sept. 28 before sending an electronic message ordering White House employees not to destroy records related to the leak.

Ashley Snee, a spokesman for Mr. Gonzales, said he believed the delay was acceptable because no one in the White House had any idea there was an investigation. But The New York Times and The Washington Post had reported the day before that the C.I.A. had forwarded the matter to the Justice Department for possible investigation.

Mr. SCHUMER. So now we are finding that even people within the Justice Department mention in the article that political supporters of Mr. Ashcroft at the Department's headquarters and at the U.S. Attorney's Offices around the country object, take issue with the way this investigation has been conducted.

Again, this was a serious crime.

This is what former President George H. W. Bush says about the leaking of names of undercover CIA agents: I have nothing but contempt and anger for those who betray the trust by exposing our sources. They are, in my view, the most insidious of traitors.

Serious stuff, traitors, not in the words of some partisan Democrat but of our present President's father, our former President.

Here we are running an investigation that makes one scratch one's head and wonder how serious, how competent, and how careful this investigation is.

I quote a former CIA agent, Mr. Marcinkowski, from an October 7 appearance on CNN, where he said:

As an operations officer on scene in a country, the effects of this—

The leak—

are that anyone who knows you or did know you will now look at your mosaic. They will look at the people you've come in contact with. They will suspect those people, be they official contacts or innocent contacts. They will suspect those persons of being intelligence agents. They could be subject to interrogation, imprisonment and even death, depending on the regime that you may be operating under.

He goes on to say:

There's also ramifications for CIA morale. I'm not naive enough to say this is having a huge impact, but certainly, it contributes to a decline in morale when you know that your own government can identify you as a clandestine operator.
Certainly, there's going to be a reluctance on the part of foreign nationals that may want to help the United States in these trying times. They're going to be reluctant to serve and help us with information, based on the fact that their identification may be revealed by the government.

So it is more obvious now than when we tried to ask for it several weeks ago that at the very minimum we need a special counsel and that Attorney General Ashcroft should recuse himself immediately. Yet we get continued mistakes and continued handling of this case as if someone does not know how to do it or someone does not care or someone is afraid to do it in a full-fledged sense.

I say to my colleagues on the other side of the aisle, this is not going to go away. The best thing we could do, not only to serve our country, which is in a time of war and I have had sympathy for that, but to serve this administration, is to put this out of any question, appoint a special counsel of high repute and integrity, and let the investigation go forward on its own and see wherever it leads.

That is why the amendment I will be introducing shortly is so important to all of us. I am not going to introduce it as of yet because I know several of my colleagues wish to speak.

Mr. HARKIN. I wonder if the Senator will yield for a question.

Mr. SCHUMER. I will be happy to yield to my colleague from Iowa for a question.

Mr. HARKIN. First, I thank the Senator from New York for his very early and very eloquent statements on this issue, going clear back to July. It was the Senator from New York who first started alerting this body and the American people as to this disclosure by the Bush administration of an undercover CIA agent's name and the ramifications it had. So we owe the Senator from New York a great deal of gratitude for his leadership on this issue because it is a matter of very grave national security importance.

I have been listening to the Senator from New York talk about the need for a special counsel and why it is so important for the Attorney General to recuse himself from this. But I ask this of the Senator from New York. It seems to me one of the ways we might really get to the bottom of this in a hurry would be if those who leaked the information to the journalists were to release the journalists from any obligation to hide the sources.

I ask the Senator, would it not be possible for the President of the United States to call in all of his senior staff, have them sit down at a desk and sign a piece of paper releasing Mr. Novak and any other journalists from protection of his or her name as a possible source of the leak? Couldn't the President just have all of the senior White House people, senior administration people sign such a thing? Then wouldn't that release the duty or obligation of the journalists to protect their sources? And wouldn't that get to the bottom of it in a hurry? I ask the Senator from New York.

Mr. SCHUMER. I thank my colleague from Iowa for his question, which is an interesting question, as well as his dogged pursuit in regard to the truth in this matter. I know this is one of many times he has come to the floor.

The bottom line is this gets us into the realm of journalists' rights and the shield law and other things. I think if the President would ask all of those in his office to release journalists from any strictures, any compunction about letting it be known—if they believed it appropriate—who leaked to them, that would be a very good idea.

I hasten to add that the journalists themselves might not do it. They have not done it in previous times. We probably would still need this investigation. But it certainly—and my colleague from Iowa is right and I wouldn't want to compel them and I know he wouldn't either, but it certainly would, again, call into good light the desire, professed desire, of those in the White House, including the President himself, to get to the bottom of this because obviously it could, and it could quickly, provided the journalists who were so released would be willing to come forward.

Mr. HARKIN. I say to the Senator from New York, it seems to me if the President really wants to get to the bottom of this—and I don't really know that he does want to get to the bottom of this—I say to the Senator from New York, it seems odd the President has been so nonchalant about it, actually joking about it with foreign reporters.

Let's say, if I were a senior administration official working for the President, and the President called me in and said: "Tom,
I want you to sign this thing; it just says, 'I, Tom Harkin, hereby release any and all journalists from any obligation they may have to me to protect my name as any possible source of a leak of this information regarding Valerie Plame,"' and he'd ask me to sign it, it seems to me if I had nothing to hide, I would sign it. If I had something to hide, I might not want to sign it. Then the President would know.

You are obviously right, you don't want to force anyone, but obviously they work for the President.

I ask the Senator from New York, doesn't it strike you as odd that the President, who has spoken so forcefully about leaks and national security, has been so nonchalant about this? Doesn't it strike the Senator as odd?

Mr. SCHUMER. It does. I thank my colleague. It does strike me as strange. I agree with you. The times there has been joking or bantering about this, it bothered me very much.

Another thing that bothers me, along the same line as to what he has asked: This President, in my judgment, to his credit, has made it a point that we have to do everything we can to defend our soldiers on the front lines. Whatever one's opinion of the war in Iraq, whatever one's opinion of our actions in Afghanistan and Kosovo and everywhere else—Korea, where we have soldiers—this President has made it a hallmark of defending those troops and doing everything to defend those troops. In fact, we are here in the Chamber defending, of the $87 billion, the vast majority, I guess—over $60 billion—to help defend them in Iraq, something that most of us, myself included, support.

Yet when it comes to defending an agent who was on the front lines and has been betrayed by, in the words of President
George H. W. Bush, a traitor, we get nonchalance, a joke here and there, "What's the bother? What's the fuss?" Excuses—"This wasn't an agent, it was an analyst." Or, "This wasn't done by malice"—the effect still being the same. That
is serious.

I would say one other thing to my colleague. The President could also demand that the culprit turn himself or herself in. I haven't heard that yet. Would you think that would be the case if someone had betrayed some of our soldiers in the field in Iraq?

There is sort of a strange dichotomy that my colleague from Iowa is absolutely right to point out. That is, for this betrayal of a soldier, if you will, who has been on our front lines, there is a nonchalance, an attitude: Well, who cares too much about this?

Do you know what it makes the average American think? It makes them think maybe there is something there, because if the President were certain that it might not go to one of his close associates, or the President were certain in his belief we had to get to the bottom of this, I don't think we would see the kinds of actions we have seen from the White House and even from the prosecution, because the prosecution itself, as I said, is not being handled well. Again, maybe not by design, but just by the structure that the President—the buck stops at his office—has allowed to persist, the structure being investigation.

Mr. HARKIN. I thank the Senator for his response.

I have one last inquiry I would like to make and have the Senator address. A lot has been focused on the individual, Valerie Plame—whom I never met, of course. But a lot has been focused on her as sort of an isolated incident, just one person, and that is it.

It has occurred to this Senator, as the Senator from New York has so plainly stated, there are more than just the uniformed soldiers in Iraq fighting the war on terrorism. It is all of our undercover agents, our CIA, our information-gathering apparatus around the world to give us forewarning of what is going to happen, to get access to that vital information that we need in this fight against global terrorism.

Can the Senator address himself to the kind of chilling effect such a disclosure might have on operatives of ours in the CIA, around the globe today, who may be out there? They are getting their sources of information. But what if they think at some point in the future they could be outed, their name could be spread out there? What about, not only them personally, but what about all their contacts? Now their contacts are thinking: My gosh, if they are outed, I am outed and my life is at risk.

Could the Senator address himself to the broader kind of effects this might have on our fight on global terrorism?

Mr. SCHUMER. I thank my colleague from Iowa for his good question.

Mr. STEVENS. Mr. President, I have been very patient. It is not a question. It is a request to make a statement.

The PRESIDING OFFICER. The Senator from Alaska is correct. The Senator may only yield time for the purpose of a question.

Mr. HARKIN. Will the Senator yield for a question?

Mr. SCHUMER. I would be happy to yield for a rephrased question.

Mr. HARKIN. Does the Senator believe that such a disclosure could have a chilling effect on operatives of ours in the field today and who in the future may be out there risking their very lives gathering information that we need on the war on terrorism? Does the Senator believe this could have a chilling effect?

Mr. SCHUMER. I would like to answer my colleague. I do indeed. Don't take my word for it. A few minutes before my colleague came to the Chamber, I quoted former agent Mr. Marcinkowski who said that on CNN. It has been reported by the media all over the place that those who have served in intelligence say exactly that—that perhaps the greatest danger that has occurred here may not have been to the individual agent, may not have even been to the group of contacts that agent had when undercover but, rather, to the morale of the intelligence agency and, as importantly, to the effectiveness because agents know they can be "outed" because they or someone they are close to says someone high up may not like it and it could well have a chilling effect.

My reports are that the CIA from top to bottom is just furious that this happened for the very reason of my friend's question, and the answer to that which I was just giving.

The only way to alleviate it—the only way to restore that credibility—is to get to the bottom of this in a full and thorough investigation.

Mr. HARKIN. Will the Senator yield for one last question?

Mr. SCHUMER. I am happy to yield.

Mr. HARKIN. The question is, Has the investigation been tainted so far? One instance which comes to this Senator's mind is when the Department of Justice announced an official investigation but they waited for days to notify the White House.
I ask the Senator: Is this not an indication that the investigation has already been tainted by the Justice Department?

Mr. SCHUMER. In answer to my colleague's question, I believe this certainly calls into question the effectiveness of this investigation, perhaps the desire to get to the bottom of it, how strong that is and how full that is. In a letter, which I, along with Senator Daschle, Senator Levin, and Senator Biden, sent to the President, we raised that very question. We have not yet received an answer.

Mr. HARKIN. I thank the Senator.

Mr. SCHUMER. I thank my colleague.

I know my friend from Alaska is eager to draw this to something of a close and still allow us to have a vote.

Mr. STEVENS. If the Senator will yield to answer my question?

Mr. SCHUMER. For the purpose of a question.

Mr. STEVENS. The Senator's amendment, if offered, is subject to a point of order. Haven't we been working on something now for 45 minutes which is not germane to this bill?

Mr. SCHUMER. In answer to my colleague—and let me say I thought there was a gentlemen's agreement between leaders
Frist, Daschle, the bill managers, yourself, and our colleague from West Virginia that if the minority agreed to help complete work on this important bill by Friday the majority would not raise points of order against our amendments. In fact, as I understand it, a number of amendments have been allowed to be voted on where points of order might stand.

Also, if I might just continue the point——

Mr. STEVENS. Will the Senator yield?

Mr. SCHUMER. In 1 minute. I want to finish the answer to the question. It was indeed a question and not an invitation for a statement. I understand that.

But if this agreement was designed to address the fact that the House hasn't completed its work yet on the supplemental, it makes it impossible for Senators to defend the germaneness of our amendments without the text of a House bill to which to refer. We don't know what is in the House bill, nor if the House bill has a provision in there which might make this germane.
That is why we came to that agreement.

Again, I wish to underscore the fact that my colleague from Alaska has honored the agreement and allowed votes on a number of amendments which clearly would be not germane. I think our side has honored the agreement as well, and we have tried to proceed without undue delay with our own amendments. Yet now we are arguing that this amendment might not be germane.

First, I disagree. It is utterly germane to the debate we are now involved in about supporting our troops overseas. As I mentioned, Valerie Plame was just as much a soldier in the war on terrorism. She was an expert on weapons of mass destruction, which is the casus belli of where we are. It is vital we get to the bottom of it.

I think this amendment is quite germane—more germane, in fact, than others. The supplemental includes $600 million to fund further weapons inspections. If we are going to spend $600 million, we have to know there is an honest assessment of whatever they may find or not find without fear of retaliation.

I understand that my colleague from Alaska has the right to object to this under germaneness. But I also understand—and I ask the question of him: Hasn't there been an agreement to allow nongermane amendments, and hasn't my colleague, in keeping that agreement, allowed nongermane amendments to be called up for a vote on the floor?

I yield to him for an answer.

Mr. STEVENS. I wonder if the Senator realizes he has just yielded the floor.

Mr. SCHUMER. Just for a question.

Mr. STEVENS. The Senator asked me a question. But I will not argue.

The PRESIDING OFFICER. Without objection, the Senator from New York will be allowed to yield to the Senator from
Alaska for the purpose of asking a question.

Mr. SCHUMER. I thank the Chair.

Mr. STEVENS. A gentlemen's agreement was entered into that we would not raise a point of order under rule XVI for germane amendments. But for those that are not germane, we made no such agreement. This is not germane to this bill.
Therefore, I hope the Senator will not offer it. As a matter of fact, I hope he will take into account another answer which I will give to him about the question of germaneness. This matter is now in the counterintelligence section of the Department of Justice. That section has decades of experience and has really enormous experience in working on matters of this type.

It is my judgment, and I ask the Senator this question: Does he realize that this sense-of-the-Senate resolution has a connotation of lack of confidence—no confidence—in the work of the counterintelligence section, a group that has very distinguished career people, and that the legislative liaison for the CIA has indicated to me through my staff that they are following the standard procedures of a series of administrations in handling this matter, and both the CIA and the counterintelligence section believe there is no need for a special counsel at this time? Does the Senator realize that this is not something which is sought by those professionals experienced in the area?

Mr. SCHUMER. I thank my colleague for his question. He underscores my point. I understand what he is saying. But we have no knowledge if the Counterintelligence Division is solely in charge of this investigation. They have to report to the Attorney General, or to the head of the FBI, or to somebody else at every move they make. Have they been countermanded in where they want to go? We know none of that. In fact, the very statement my friend from Alaska related about his staff inquiry is the most information that has been publicly given about how this investigation is being conducted.

The problem we are trying to get at here and the reason a special counsel is so needed is very simple; that is, we don't know who is in charge. My colleague from Alaska said, staff to staff, they say it is counterintelligence.

May I yield to him for the purpose of a question only and then reclaim the floor? I ask my colleague for that permission.

The PRESIDING OFFICER. Is there objection to the Senator from New York yielding to the Senator from Alaska for the purpose of answering a question?

Without objection, it is so ordered.

Mr. SCHUMER. I thank the President. I thank my colleague from Alaska.

Does my good colleague know if Mr. Dion, head of the Counterintelligence Division—I have nothing bad to say about him—is required to report to anybody about whom he subpoenas, whom he questions, what kind of facts he is allowed to pursue, or can he do this completely on his own?

Mr. STEVENS. Mr. President, from my experience with this section—and I do not get involved with this section too often—it is a counterintelligence section of the Department of Justice. They have their own system of investigation. It has a very broad agenda in terms of portfolio. They have the scope of the whole intelligence network to work with.

I share the Senator's umbrage about the leak. The question is, how to handle that leak. It is in the hands of the people who are trained and who have in the past discovered such leaks. Who will it be reported to? I am sure the criminal division of the Department of Justice, if and when they find who is responsible for the leak, because it is a violation of the criminal statute.

Mr. SCHUMER. I thank my colleague for his answer. I simply say that in an area such as this, which is so unusual, this is not just the typical leak. The counterintelligence division handles scores of leak cases every year. My good colleague from Alaska is correct. However, none, as far as I am aware, have involved the revealing of the name of an agent. It is a much more serious situation. It is a crime in itself.

The bottom line is very simple: This is so important that we cannot leave to conjecture that the counterintelligence division generally does a good job so we will assume they are doing a good job here. I appreciate my colleague being on the floor when I spoke, but there have been a number of missteps along the way not caused by the counterintelligence division but by others. This is too important to leave to supposition. That is why we are seeking a special counsel. We cannot just say they generally do a good job, we assume they will do a good job on this. This is a crime, a matter of great importance. I would like to go further than that. That is the purpose of this amendment which I hope my colleague will allow us to offer and vote on, given the agreement.

I am happy to yield for another question.

Mr. STEVENS. On what basis does the Senator say this is a unique case? In my experience, I have known several leaks and several individuals who were apprehended for leaks, some prosecuted, some not. Is it the Senator's impression this is a case of first impression?

Mr. SCHUMER. It is my impression, in answer to my colleague's question, this is a question of rare impression. The number of times the name of an agent has been publicly published in the newspaper and leaked by somebody not on the other side but rather by somebody who is "a high administration official," I cannot think of a one. I know some spies leak names. Aldridge Ames leaked names and was punished for it, but I don't know of a single instance where someone within the administration leaked the name of an agent.

If it is not a first impression, it is a very rare impression, quite different than most of the leaks we have had. That is my answer to my colleague's question. I don't think this is usual or typical. I pray to God it is not.

Mr. President, I ask unanimous consent to lay aside the pending amendments and consider the amendment which I send to the desk.

The PRESIDING OFFICER. Without objection, it is so ordered.

The clerk will report.

The assistant legislative clerk read as follows:

The Senator from New York [Mr. SCHUMER], for himself, Mr. Daschle, Mr. Reid, Ms. Mikulski, Mr. Rockefeller, Mr. Leahy, Mr. Levin, Mr. Nelson of Florida, Mr. Kennedy, Mr. Durbin, Mr. Baucus, Mr. Harkin, Mr. Bayh, Mr. Hollings, Mr. Biden, Mr. Lautenberg, Mr. Sarbanes, Mr. Bingaman, Mr. Kerry, Mr. Wyden, Mr. Graham of Florida, Mrs. Boxer, Mr. Lieberman, Mrs. Feinstein, Mrs. Clinton, Mr. Johnson, and Mr. Edwards, proposes an amendment numbered 1872.

(Purpose: To express the sense of Congress concerning the appointment of a special counsel to conduct a fair, thorough, and independent investigation into a national security breach)