H. Rept. 109-228 - 109th Congress (2005-2006)
September 21, 2005, As Reported by the Intelligence (Permanent) Committee

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House Report 109-228 - REQUESTING THE PRESIDENT TO TRANSMIT TO THE HOUSE OF REPRESENTATIVES NOT LATER THAN 14 DAYS AFTER THE DATE OF THE ADOPTION OF THIS RESOLUTION DOCUMENTS IN THE POSSESSION OF THE PRESIDENT RELATING TO THE DISCLOSURE OF THE IDENTITY AND EMPLOYMENT OF MS. VALERIE PLAME




[House Report 109-228]
[From the U.S. Government Printing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-228

======================================================================

 
 REQUESTING THE PRESIDENT TO TRANSMIT TO THE HOUSE OF REPRESENTATIVES 
     NOT LATER THAN 14 DAYS AFTER THE DATE OF THE ADOPTION OF THIS 
RESOLUTION DOCUMENTS IN THE POSSESSION OF THE PRESIDENT RELATING TO THE 
     DISCLOSURE OF THE IDENTITY AND EMPLOYMENT OF MS. VALERIE PLAME

                                _______
                                

 September 21, 2005.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

  Mr. Hoekstra, from the Permanent Select Committee on Intelligence, 
                        submitted the following

                             ADVERSE REPORT

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                       [To accompany H. Res. 418]

  The Permanent Select Committee on Intelligence, to whom was 
referred the resolution (H. Res. 418) requesting the President 
to transmit to the House of Representatives not later than 14 
days after the date of the adoption of this resolution 
documents in the possession of the President relating to the 
disclosure of the identity and employment of Ms. Valerie Plame, 
having considered the same, report unfavorably thereon without 
amendment and recommend that the resolution not be agreed to.

                     COMMITTEE STATEMENT AND VIEWS

A. Purpose and summary

    H. Res. 418 is a resolution of inquiry requesting the 
President to transmit to the House of Representatives not later 
than 14 days after its enactment all documents in his 
possession relating to the disclosure of the publicly alleged 
identity of Ms. Valerie Plame as an employee of the Central 
Intelligence Agency. The resolution requests documents during 
the period beginning May 6, 2003 and ending on July 31, 2003.

B. Background

    A resolution of inquiry may be adopted by the House as a 
means of obtaining documents from the Executive Branch for 
investigative purposes. Clause 7 of rule XIII of the House of 
Representatives provides for specific procedures regarding 
resolutions of inquiry in the House, including that a motion to 
discharge a committee from its consideration shall be 
privileged if not reported to the House within 14 legislative 
days after its introduction. H. Res. 418 was introduced on July 
29, 2005. Including recess days, the Committee adversely 
reports H. Res. 418 to the House within 14 legislative days of 
its introduction in the House.
    The resolution seeks documents that relate to the 
disclosure of the alleged identity of Ms. Valerie Plame as an 
employee of the Central Intelligence Agency. On December 30, 
2003, then-Attorney General John Ashcroft publicly announced 
that he had appointed Patrick Fitzgerald, United States 
Attorney for the Northern District of Illinois, as Special 
Counsel to investigate this matter. The Special Counsel's 
investigation remains ongoing. On September 14, 2005, the 
Department of Justice advised the Committee by letter that 
``Mr. Fitzgerald has advised that production at this time of 
the documents responsive to H. Res. 418 *  *  * and any 
attendant hearings, would interfere with his investigation.'' 
\1\ The Department requested that the Committee adversely 
report H. Res. 418.
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    \1\ Letter from Assistant Attorney General William Moschella to 
Chairman Peter Hoekstra, September 14, 2005 (included in record of 
Committee business meeting of September 15, 2005).
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    Under the precedents of the House, a Committee may choose 
to adversely report a resolution of inquiry when it concludes 
that it competes with other investigations that are regarded as 
more appropriate.\2\ In 1980, the Judiciary Committee adversely 
reported H. Res. 571,\3\ noting the opposition of the 
Department of Justice, which centered on the concerns that 
disclosure of evidence to the House would jeopardize the 
Department's ability to successfully conduct grand jury 
investigations and to prosecute any indictments, and that the 
release of unsifted and unevaluated evidence would injure the 
reputations of innocent persons.\4\
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    \2\ See Fisher, ``House Resolutions of Inquiry,'' Congressional 
Research Service Report for Congress RL31909, at 14 (May 12, 2003).
    \3\ H. Rpt. 96-778, 96th Cong., 2d Sess. (February 20, 1980).
    \4\ Fisher, supra note 2, at 15.
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    More recently and more directly relevant to the immediate 
resolution, four Committees of the House in 2004 adversely 
reported a resolution of inquiry requesting documents relating 
to the same subject matter as H. Res. 418. In the 108th 
Congress, H. Res. 499 requested the President and directed the 
Secretary of State, Secretary of Defense, and the Attorney 
General to provide documents in their possession relating to 
the disclosure of the identity and employment of Ms. Valerie 
Plame. The resolution was adversely reported by the Permanent 
Select Committee on Intelligence,\5\ the Committee on 
International Relations,\6\ the Committee on the Judiciary,\7\ 
and the Committee on Armed Services.\8\ Each Committee 
expressed its view that the pending criminal investigation was 
the most appropriate avenue for determining the facts of the 
case and any wrongdoing that may have occurred.\9\
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    \5\ H. Rpt. 108-413, Part 1, 108th Cong., 2d Sess. (February 3, 
2004).
    \6\ H. Rpt. 108-413, Part 2, 108th Cong., 2d Sess. (February 27, 
2004).
    \7\ H. Rpt. 108-413, Part 3, 108th Cong., 2d Sess. (February 27, 
2004).
    \8\ H. Rpt. 108-413, Part 4, 108th Cong., 2d Sess. (February 27, 
2004).
    \9\ The Permanent Select Committee on Intelligence concluded 
``[b]ecause this resolution of inquiry may impede that investigation, 
the resolution is reported adversely.'' Supra note 5, at 4. The 
Committee on International Relations ``concluded that it would be 
unwise to allow H. Res. 499 to jeopardize an ongoing criminal 
investigation by the Department of Justice.'' Supra note 6, at 3. The 
Committee on the Judiciary expressed its belief ``that the current 
grand jury investigation is the more appropriate avenue for determining 
the facts of the case and any criminal wrongdoing.'' Supra note 7, at 
6. The Committee on Armed Services ``concluded that transmittal of the 
materials identified in H. Res. 499 would undermine the investigation 
and possible criminal prosecution of any suspects believed to have 
committed a crime in the Plame matter.'' Supra note 8, at 3.
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    The Committee believes that it is imperative that the 
Congress and the Executive Branch continue to take aggressive 
steps to protect classified intelligence and national security 
information from unauthorized disclosures, whether it is the 
identity of an individual, details of intelligence sources and 
methods, or classified documents. Spurred by a number of recent 
events, it is currently conducting a broad, substantive, and 
evenhanded review dealing with legislative, policy, and 
oversight issues arising from the overall problem of 
unauthorized disclosures of classified information. These 
events include the determination by the President's Commission 
on the Intelligence Capabilities of the United States Regarding 
Weapons of Mass Destruction that ``a persistent inability to 
protect human and technical collection [from disclosure] has 
substantially damaged U.S. intelligence capabilities,'' \10\ 
recent criminal cases, media reports on sensitive intelligence 
programs, and the matter that is the subject of H. Res. 418.
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    \10\ Report to the President of the United States by the Commission 
on the Intelligence Capabilities of the United States Regarding Weapons 
of Mass Destruction (March 31, 2005), at 380.
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    To the extent that these events call for review of 
legislative and policy issues, the House must focus on the 
problem broadly rather than focusing solely on any specific 
case. To the extent that any of these incidents implicate 
potential criminal liability in individual cases, those issues 
should be properly and more effectively dealt with by the 
proper investigative authorities without interference from the 
House. Accordingly, the Committee adversely reports H. Res. 418 
to the House.

                                HEARINGS

    The Committee held no hearings on H. Res. 418.

                    COMMITTEE CONSIDERATION AND VOTE

    On September 15, 2005, the Committee met in open session 
and ordered H. Res. 418 adversely reported, without amendment. 
The Committee took the following recorded vote:
    1. A motion by Mr. Hoekstra to report H. Res. 418 adversely 
to the House was agreed to by a record vote of 11 ayes to 9 
noes:
    Voting aye: Mr. Hoekstra (Chairman), Mr. LaHood, Mr. 
Cunningham, Mr. Everett, Mr. Gallegly, Ms. Wilson, Ms. Davis, 
Mr. Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Renzi.
    Voting no: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr. 
Boswell, Mr. Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, 
Mr. Tierney.

                      SECTION-BY-SECTION ANALYSIS

    The resolution requests the President to transmit to the 
House of Representatives not later than 14 days after its 
enactment all documents in his possession relating to the 
disclosure of the publicly alleged identity of Ms. Valerie 
Plame as an employee of the Central Intelligence Agency. The 
resolution requests documents during the period beginning May 
6, 2003 and ending on July 31, 2003, and would apply to ``all 
documents, including telephone and electronic mail records, 
logs and calendars, personnel records, and records of internal 
discussions in the possession of the President.''
    The Committee adopted no amendments.

                 OVERSIGHT FINDINGS AND RECOMMENDATIONS

    In accordance with clause 3(c)(1) of rule XIII of the House 
of Representatives, the Committee reports that the findings and 
recommendations of the Committee, based on oversight activities 
under clause 2(b)(1) of rule X of the Rules of the House of 
Representatives, are incorporated in the descriptive portions 
of this report.

               NEW BUDGET AUTHORITY AND TAX EXPENDITURES

    Clause 3(c)(2) of rule XIII of the House of Representatives 
is inapplicable because this resolution does not provide new 
budgetary authority or increased tax expenditures.

                GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with Clause (3)(c)(4) of rule XIII of the 
House of Representatives, the Committee's performance goals and 
objectives are reflected in the descriptive portions of this 
report.

                       UNFUNDED MANDATE STATEMENT

    H. Res. 418 provides no federal mandates.

                            ADDITIONAL VIEWS

    The report notes that the Committee is conducting a broad 
review of issues arising from the problem of unauthorized 
disclosures of classified information spurred by a number of 
events, including recent criminal cases. I provide these 
additional views simply to clarify a factual matter which arose 
during the Committee's business meeting relating to the 
criminal case of former National Security Adviser Samuel R 
``Sandy'' Berger.
    Mr. Berger recently pled guilty to a federal misdemeanor 
charge of unauthorized removal and retention of classified 
material. At the Committee markup, Ms. Harman noted for the 
record that the Justice Department had stipulated that no 
original documents had been removed from the National Archives, 
but instead copies of draft documents on which he had written 
notes. I simply wish to clarify that the Factual Basis for Plea 
in this case indicates that Mr. Berger removed five documents 
from the National Archives, each different versions of the same 
document, and only returned two documents to the Archives 
staff. Mr. Berger has indicated that the other three documents 
were cut into small pieces and discarded, although it is not 
clear in the court record how or where this occurred, or 
whether the materials were ever fully accounted for.
     The court record further indicates that the 9/11 
Commission received copies of each of the documents that were 
removed trom the Archives in the normal course of production. 
However, it is not stated whether Mr. Berger created additional 
handwritten notes on the documents that were destroyed, or 
whether Mr. Berger was aware that the destroyed materials were 
duplicates.

                                                    John M. McHugh.

                             MINORITY VIEWS

    Disclosing the identity of our intelligence operatives is a 
serious breach of national security and dangerous to the men 
and women who serve the United States. Revealing this 
information provides our enemies with information about those 
who risk their lives to work covertly with or for the U.S. 
Government. It undermines morale among our intelligence 
professionals at a time when the nation increasingly relies on 
their dedication and expertise. And it compromises our ability 
to conduct intelligence operations around the world.
    Exploring the issue of leaks is an appropriate oversight 
issue for this Committee. As Chairman Hoekstra recently stated 
in a speech to the Heritage Foundation, ``We know the enemy 
pays very close attention to open-source material--such as U.S. 
newspapers and the Internet--in order to gain a better 
understanding of our objectives and capabilities.''
    To that end, the Committee is conducting a series of 
hearings on leaks of classified information. This week, we held 
our first hearing on this issue to assess the damage done by 
leaks of classified information.
    H. Res. 418, sponsored by Rep. Holt, would require the 
Administration to provide documents and other materials to 
Congress regarding the disclosure of the identity of a CIA 
employee so that the Committee can exercise its oversight 
responsibilities regarding the compromise of classified 
intelligence information.
    The Majority articulated two arguments against this 
resolution, neither of which withstands scrutiny.
    First, the Majority claimed that Congressional oversight of 
this issue would interfere with the pending criminal 
investigation. As an initial matter, Special Prosecutor Patrick 
Fitzgerald has stated in court filings that the investigation 
has been complete since October 2004. As the Resolution only 
asks for documents from May 6, 2003, to July 31, 2003, it is 
unclear how producing these documents to Congress would 
interfere with an investigation that has been complete for 
nearly a year.
    More fundamentally, the existence of a criminal 
investigation has never barred Congress from investigating 
important public policy issues. For example, in the 1970s, 
Congress investigated Watergate as criminal prosecutions were 
being brought. In 1999, Congress investigated the Wen Ho Lee 
matter while DOJ was conducting a parallel investigation. In 
2002 and 2003, the Oversight and Investigations Subcommittee of 
the House Energy and Commerce Committee investigated the 
collapse of Enron, insider trading by Martha Stewart, and 
accounting irregularities at HealthSouth at the same time as 
the Justice Department was vigorously prosecuting individuals 
connected to all three matters. This year, Senator John McCain 
has led an intense investigation into the activities of 
lobbyist Jack Abramoff, even as Mr. Abramoff has been the 
target of multiple criminal investigations. And throughout the 
1990s, Committees in both chambers investigated ``Whitewater,'' 
notwithstanding the fact that special prosecutors were 
simultaneously investigating and prosecuting those same issues.
    Second, the Majority claimed that H. Res. 418 is simply a 
partisan resolution. We do not believe that protecting the 
identities of intelligence professionals is--or should be--a 
partisan issue. Indeed, President George H.W. Bush stated in a 
speech to CIA employees in 1999 that those who leak the 
identity of intelligence operatives are the ``most insidious of 
traitors.'' The Majority's claim that a leak of a CIA officer's 
identity should not be investigated by this Committee because 
doing so would be ``partisan'' simply sidesteps the merits of 
the issue and does a disservice to our intelligence 
professionals.
    The Committee must demonstrate to the public, as well as to 
the dedicated men and women of the Intelligence Community, that 
we understand the gravity of this security breach. It is our 
duty to show our intelligence officers that we value their 
service and will fight to protect them from reckless 
disclosures. In adversely reporting out H. Res. 418, the 
Committee missed a critical opportunity to exercise appropriate 
and responsible oversight of this serious matter.

                                   Jane Harman.
                                   Alcee L. Hastings.
                                   Silvestre Reyes.
                                   Leonard L. Boswell.
                                   Bud Cramer.
                                   Anna Eshoo.
                                   Rush Holt.
                                   Dutch Ruppersberger.
                                   John F. Tierney.