The Senate Ethics Committee is moving ahead with an investigation into alleged classified leaks from the Intelligence Committee almost three years ago, a probe that will likely focus on Sen. Richard Shelby (R-Ala.), a panel member said.
While Shelby said he had not yet been contacted by the committee, Sen. Pat Roberts (R-Kan.) said last week that he has been informed that the matter would come before the full panel at some point in the near future.
“The chairman told me it would be forthcoming,” said Roberts, a veteran member of Ethics.
The Ethics chairman, Sen. George Voinovich (R-Ohio), declined to talk about the case, citing his policy of declining to discuss any issue before the panel. “My answer on everything is no comment, and those are the rules that we live by,” he said.
Roberts, who is now the chairman of the Intelligence Committee, declined to elaborate on any details about how the investigation would unfold, but he added that he will participate in the investigation “whenever this does come up.”
Roberts said last fall — after the Justice Department referred its criminal investigation into the leak to the Ethics Committee — that he would most likely recuse himself from the case because he was on Intelligence in June 2002, when the leak occurred, and now chairs the committee. Any Ethics probe, therefore, would in some way have to investigate how Intelligence does its business, putting Roberts in the potentially awkward position of investigating his own committee.
But Roberts decided against recusal because he believes his experience on Intelligence will help the other Ethics members — none of whom is on Intelligence — navigate the sometimes arcane waters of classified information.
“We do have some past experience and expertise there,” Roberts said of his Intelligence service.
One member of the Intelligence Committee said the Ethics panel should not focus solely on Shelby, who has denied knowingly revealing classified information at any time during his eight years on the secretive committee.
“It’s not necessarily limited to one person, in my judgment,” the Intelligence Committee member said, requesting anonymity.
Voinovich and the vice chairman of the evenly divided six-member committee, Sen. Tim Johnson (D-S.D.), have the power to dismiss the case on their own without consulting the other members of the panel. Since Voinovich told Roberts that the case will be coming to the full panel, that suggests the investigation is moving into what is known as a preliminary inquiry — the earliest stage of an investigation.
It will examine the actions of the 2002 joint House-Senate Intelligence committees investigation into the domestic and foreign intelligence data leading up to the Sept. 11, 2001, attacks. Shortly after one of the joint panel’s closed-door hearings in June 2002, CNN aired a report about how the National Security Agency, just before the attacks, intercepted an Arabic-language message saying “Tomorrow is zero hour.”
That message, however, was not translated until the day after the attacks, an embarrassing revelation to the NSA and the nation’s other intelligence agencies. The leaders of the joint Congressional probe — then-Sen. Bob Graham (D-Fla.) and then-Rep. Porter Goss (R-Fla.), who chaired the respective chambers’ Intelligence panels — asked the Justice Department and the FBI to launch a criminal investigation into the CNN leak. They contended that the information was classified, making it illegal to reveal to anyone else.
In the summer of 2002, the FBI did a flurry of interviews, focusing almost completely on the Senate and particularly on Shelby, who left the Intelligence Committee at the start of 2003 because of term limits.
The FBI tried to interview CNN reporter Dana Bash, who covered the Senate at the time of the joint committee hearings, but she refused to talk to investigators. The FBI did talk to Fox News correspondent Carl Cameron, who told The Washington Post last summer that he declined to talk about the issue with investigators because he never aired a report on the committee’s work that day.
In late July 2004, the Justice Department referred its files to the Ethics Committee, and appears to have drawn the criminal phase of the case to a close without any indictments or conclusions.
Shelby has said the last contact he had with any investigators on the matter was in August 2002, about the time the FBI was conducting interviews with the 17 Senators on Intelligence at the time. And he said Thursday that he has had no indication from Voinovich or anyone else at Ethics that they are moving ahead with the investigation.
“I haven’t heard a thing. I don’t know a thing,” he said.
While the committee received the case last summer, it appears to have observed its traditional stance of not beginning an investigation of a Senator just before an election. Shelby faced minimal opposition last fall and won re-election to his fourth term.
He ended 2004 with $11.2 million still left in his campaign account.
The Ethics Committee could decide, after its preliminary inquiry, to drop the matter altogether or issue a letter of admonishment. The initial inquiry may not involve interviewing any outside witnesses, as was the case in 2002 when Justice forwarded its files regarding then-Sen. Robert Torricelli to Ethics.
In the Torricelli matter, the New Jersey Democrat was the only witness interviewed, as the panel instead relied on thousands of pages of grand jury testimony and other files from the three-year Justice investigation. Eventually, the panel “severely admonished” Torricelli for accepting thousands of dollars worth of unethical gifts from a donor.
If the Intelligence Committee matter is considered sufficiently serious, Ethics would then begin a full adjudicatory review, which would include the possibility of hiring an independent counsel to conduct hearings.
No adjudicatory review has been conducted by the Senate Ethics panel since the early 1990s, when one was held to investigate sexual misconduct by then-Sen. Bob Packwood (R-Ore.).