By Murray Waas, special to National Journal
© National Journal Group Inc.
Sunday, Nov. 13, 2005

The Senate Ethics Committee informed Sen. Richard Shelby, R-Ala., late on Friday that after a 15-month inquiry into allegations that he had leaked sensitive national security information to the news media, that it had insufficient evidence that he had done anything wrong, and would not pursue the matter further, National Journal has learned.

The Senate Ethics Committee inquiry commenced as a result of a referral from the Department of Justice to the committee on July 20, 2004, in which the department said that there existed what sources described as "credible and specific information" that Shelby might have leaked classified information to the press, and then possibly made false statements to federal investigators to conceal what he had done.

What had attracted the interest of the FBI were news reports in 2002 revealing that on the eve of the September 11, 2001 attacks on the World Trade Center and the Pentagon, the National Security Agency had intercepted two Arabic-language messages suggesting that such attacks might soon commence. The messages that were overheard said: "The match is about to begin," and "Tomorrow is zero hour." But they were not translated until the day after the attacks, on September 12, 2001.

The messages were discussed at length during a closed door session of the Senate Intelligence Committee on June 19, 2002, by Lt. Gen. Michael V. Hayden, the then-director of the National Security Agency. Shortly after the hearing concluded, CNN aired a report disclosing the two messages. The next day, both The Washington Post and USA Today published much more detailed news reports regarding the intercepts. Shelby was at the time the top Republican on the Senate Intelligence Committee.

Senior intelligence officials have insisted that even if the messages had been translated immediately, the 9/11 attacks almost certainly could not have been prevented. But they said that the leak revealed possible sources and methods of intelligence gathering, and was considered a major security breach.

Before the Justice Department made its referral to the Ethics Committee, it conducted its own criminal inquiry of the matter for more than two years and presented some evidence to a federal grand jury.

A sharp disagreement ensued between the FBI and senior Justice Department officials overseeing the case, according to federal law enforcement officials. The FBI was convinced not only that Shelby leaked the information regarding the intercepts, but also that the senator might have misled the FBI when he was interviewed about his actions, according to sources. They advocated that Shelby be prosecuted.

But a former senior Justice Department said in an interview that recommendations that charges be lodged against Shelby were an "overreach." Aides to Shelby said he was frustrated by being unable to answer anonymous allegations by unnamed officials that he had divulged classified information, or broken the law. Shelby now says he is "gratified" that the inquiry is over, and feels "vindicated" by its conclusion.

In the letter sent to Shelby on Friday, Senate Ethics Committee Chairman George Voinovich, R-Ohio, and the committee's vice chairman Tim Johnson, D-S.D., wrote: "By letter, July 20, 2004, the Department of Justice informed the Select Committee on Ethics that it had investigated the unauthorized disclosure of classified information relating to the alleged National Security Agency intercepts collected on September 10, 2001 but not translated until Sept. 12, 2001."

The letter went on to say: "The Department of Justice further stated in its letter that its investigation had produced evidence and information concerning your conduct in connection with the disclosure and concerning 'related conduct.'" Sources said the "related conduct" were allegations that Shelby had misled federal investigators during the probe.

The letter concluded by saying that "the committee has dismissed the matter referred to it by DOJ."

Although the Shelby leak inquiry had not drawn much public attention -- and had been overshadowed by special prosecutor Patrick Fitzgerald's probe of the unmasking of the identity of CIA officer Valerie Plame and the recent demands by the House and Senate Republican leadership to investigate the leak of details of a covert CIA overseas prison system used to hold and interrogate terror suspects -- much was at stake regarding the outcome of the Ethics committee inquiry, not only for Shelby, but also the congressional Republican leadership and the Bush administration.

Had the Ethics Committee probe determined that a Republican senator had leaked sensitive classified information, so soon after the indictment of I. Lewis (Scooter) Libby, the former chief of staff to Vice President Dick Cheney, the finding would have had wide-ranging political ramifications, Democrat and Republican congressional staffers said in interviews.

Moreover, said the same congressional sources, Senate Majority Leader Bill Frist, R-Tenn., pulled back from a demand that he and House Speaker J. Dennis Hastert, R-Ill., made on Tuesday that the House and Senate jointly investigate the leak of the information regarding the covert CIA prison, because it would drawn attention back to both Fitzgerald's probe of the Plame leak and the Ethics committee probe of Shelby.

The day after that request, on Wednesday, the chairman of the Senate Intelligence Committee, Pat Roberts, R-Kan., said he had not been consulted by Frist and Hastert about their calls for a bicameral investigation of the leak of the CIA prison system. Roberts said he that he was "respectfully" requesting that Frist reconsider, and Frist has indicated he might do so while the Justice Department considers its own preliminary inquiry into the matter.

In talks with the Senate Republican leadership, Roberts, who as a member of the Ethics committee considered the Shelby case, reminded Frist that the Shelby matter was then still an ongoing issue, according to senior congressional sources. Sarah Little, a spokesperson for Roberts, said: "This office does not comment on what may or may not be before the Ethics committee as prescribed by ethics committee policy." Robert Walker, the chief counsel and staff director of the Senate Ethics Committee, declined to comment about anything regarding the investigation.

-- Murray Waas is a Washington-based writer and frequent contributor to National Journal. Several of his previous stories are also available online.

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