Shelby classified leak probe referred to ethics panel, signalling unlikely criminal charge

Saturday, July 24th 2004, 8:50 pm

By: News On 6

WASHINGTON (AP) _ The Justice Department has referred to the Senate Ethics Committee an investigation into whether Sen. Richard Shelby of Alabama or his staff leaked classified information, indicating that criminal charges are highly unlikely, a federal law enforcement official said Saturday.

The referral Thursday means that it is now up to the ethics panel to decide if any action is warranted against Shelby, a Republican who was chairman of the Senate Intelligence Committee at the time of the Sept. 11, 2001 terror attacks.

Both the House and Senate intelligence committees were also briefed by prosecutors and the FBI about the findings of the investigation, said the law enforcement official, who spoke on condition of anonymity because the probe remains officially open.

The investigation concerned the 2002 disclosure to news reporters of two messages intercepted by the National Security Agency a day before the Sept. 11 terror attacks. Those messages contained the words ``the match begins tomorrow'' and ``tomorrow is zero day'' but they were not translated from Arabic until Sept. 12.

The intercepts had been disclosed by the NSA director, Lt. Gen. Michael Hayden, during a private meeting of a joint House-Senate intelligence committee that investigated the Sept. 11 attacks. Shelby was on the panel at the time.

Shelby has adamantly denied any wrongdoing and said he and his staff cooperated in the investigation. His spokeswoman, Virginia Davis, refused comment Saturday night and referred reporters to the senator's statement issued in January.

``My position on this issue is clear and well-known: At no time during my career as a United States Senator and, more particularly, at no time during my service as Chairman of the Senate Select Committee on Intelligence have I ever knowingly compromised classified information,'' Shelby said in that statement.

It is a felony to intentionally leak classified information, but leak investigations rarely produce criminal charges because there are few witnesses and little or no paper trail to follow. Prosecutors also must prove that the person leaked the information with full knowledge it was a government secret.

The specificity of the wording in the 2002 leaks was particularly troubling to intelligence officials because it could tip off terrorists that a particular channel they were using had been compromised and thus dry up a valuable source of information by prompting them to use alternative means of communication.