Law Protects Confidential CIA Agents
Aired October 3, 2003 - 08:15 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL HEMMER, ANCHOR: Back to Washington now, where the Justice Department is expanding its CIA leak investigation beyond the White House: the departments of State and Defense.
Congressional Democrats still insist that the Bush Justice Department cannot conduct a truly independent probe. Now, a senior Republican senator says the attorney general should recuse himself, or at least consider it to avoid any appearance of conflict of interest.
There's a lot to cover this morning. Former federal prosecutor Victoria Toensing is here to help us out.
Nice to see you. Good morning to you.
VICTORIA TOENSING, FORMER FEDERAL PROSECUTOR: Good morning, Bill.
HEMMER: First things first. Were any laws broken that we know of right now?
TOENSING: We have no idea right now. That's the whole point, and I think that's why we're having this discussion.
HEMMER: Take me back about 20 years, then. You helped write the law on this. What law did you help write?
TOENSING: I did. It's called -- Well, the shorthand is Agent Officers and Identities Protection Act. So we'll just call it that, the Protection Act.
Let me take you back to the time, in the early 1980s.
In the 1970s, a renegade CIA officer by the name of Philip Agee had access, of course, to all the names of who was serving abroad for the CIA. And he began giving them to left-wing publications in Europe, who were publishing them.
As a result, the station chief in Athens, Welch, Richard Welch, was assassinated. Now it just so happened that he was the college roommate and good friend of Senator John Chaffee at that time. And John Chaffee was also on the Senate Intelligence Committee.
So when I started as chief counsel in December, 1981, Barry Goldwater, then the chairman, assigned me my first priority, my first job was to see to it that we got a law passed that made it a crime to expose CIA people serving abroad. HEMMER: So it's my understanding, then, you have to have two things, essentially, to break the law. You have to know that the person is classified, and you have to do it with intent. Is that right?
TOENSING: Well, it's not quite that simple. Let me tell you how we wrote it. We broke -- we divided the world into two groups, the leaker and the leakee. And so the leakers, the people who have access to authorized information, you know, like the Philip Agees of the world.
So then the leakee is a person like a journalist who, you know, is receiving the information. And we really gave very different standards of proof, depending on whether it was the journalist or the person who had classified access to classified information about who was covert.
HEMMER: Bottom line is, we don't know a lot of these facts right now, so we can't put that into the category at this point, true?
TOENSING: Well, we know certain things. We know that the agency says that this is a person who was supposed to have been protected.
Now, that's the first thing we did. We said, well, whose identity do we want to protect? And we decided it had to be somebody who was like an intelligence officer, who the United States government had decided that their identity was classified, and was serving overseas or had done so in the last five years. Those were the people whose identity we wanted to protect.
HEMMER: We're going to be -- keep going.
HEMMER: One more thought?
TOENSING: Yes, one more thought. So right now we don't know. Because we hear different scenarios. It's the leakee. Bob Novak, the journalist is not in any problem. He's fine.
But it's who gave this information and there's so many scenarios, Bill, that we just don't know right now, and that's why an investigation is going on.
HEMMER: Let's bring it back to present day. Should John Ashcroft recuse himself?
TOENSING: You know, I don't have a problem if he does or if he doesn't. It wouldn't be unusual. When I was at the Justice Department in the 1980s, there were times that the attorney general had to recuse himself because of certain relationships.
So that's not going to help the investigation any more, because you have career people working on it, people who do these kinds of investigations all the time.
HEMMER: Final question here, what's wrong with having an outside independent counsel in a matter like this?
TOENSING: Well, Bill, when we just start getting down to the practicality of it, it's very difficult. First of all, it would take at least six more months to even get an outside independent council going. You have to set up an office. My husband was an independent counsel, and it took six months just to find the office, get a staff and get going.
Don't we want to address this right now and get it done?
HEMMER: Victoria Toensing from D.C. It's not over yet. We know that. Thanks for sharing with us today and a bit of history, also.
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