WASHINGTON — Information about a criminal investigation of possible intelligence leaks by Sen. Richard Shelby was referred to the Senate Ethics Committee on Thursday, senior law enforcement and intelligence officials have told NBC News.
The information is related to a leak of intercepted al-Qaida communications just prior to the Sept. 11, 2001, attacks.
The criminal investigation of Shelby, RR-Ala., who no longer serves on the committee, remains open. But the fact that the matter has been referred to the Senate Ethics Committee indicates that the action will now shift to Capitol Hill and that a criminal indictment is not likely unless and until additional information comes to light, a law enforcement source told NBC News.
The Congressional intelligence committees were briefed on the matter as well.
Shelby denies intentional leak
Shelby has in the past denied that he ever "knowingly compromised classified information" and his staff told reporters on Saturday that they should refer to the previous statement on the issue he made earlier this year.
The investigation centers on the leak of highly classified intelligence related to al-Qaida communications in June 2002, primarily to CNN.
CNN reported on June 20 that in one communication intercepted by the National Security Agency on Sept. 10, 2001, an individual was overheard saying, "The match begins tomorrow" while in another that same day, a second person said, "Tomorrow is zero hour." In both, the speakers were in Afghanistan and were speaking to individuals in Saudi Arabia. The intercept was not found until Sept. 12, 2001.
The intercept was from a communications channel the United States had identified as a key communications link for al-Qaida operatives.
“Leaking the exact language would presumably tell the two ends of the conversation not to use that channel again since it had been compromised,” one senior U.S. intelligence official told NBC News.
The White House and CIA were incensed by the leak and demanded an investigation. Vice President Dick Cheney was so angered by the leak that he personally called the chairs of both the House and Senate Intelligence committees, believing the leak came from inside the committees.
The committees were viewed immediately as the source of the leak because the information appeared in the media within 24 hours of a CIA briefing on the subject to the committees.
In response, the then-chairs of the committees, Rep. Porter Goss (R-Fla.), chair of the House intelligence committee, and Sen. Bob Graham (D-Fla.), called on the Justice Department to investigate whatever role the committee may have had in the leak.
Shelby, at the time the ranking member of the Senate committee, also signed the letter, but also stated, "I do believe that the American people need to know a lot about the shortcomings of our intelligence community, but they also need to know the good things that are going on, and what we are going to do in this investigation, I believe, is bring out the best of both."
Since the investigation began, both members and staff of the committee have been interviewed and at least one key Shelby aide voluntarily was administered a lie-detector test.
Shelby is chairman of the Senate Banking Committee and is currently on the Senate Governmental Affairs Committee, which on Friday was given responsibility for enacting intelligence and other reforms recommended by the 9/11 commission.
Earlier Saturday, Virginia Davis of Shelby's Alabama office told NBC's Birmingham affiliate, WVTM, that it would have no new response but instead referred the media to a statement Shelby's office released in January 2004.
"Of course, I have no knowledge as to the progress of the investigation and have had no contact with investigation officials for well over a year," Shelby said in that statement. " ... 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. To my knowledge, the same can be said about my staff. We have provided the investigation with our full cooperation in the past, and we will continue to do so."
Pete Williams is Chief Justice Department Correspondent for NBC News and Robert Windrem is NBC News Senior Investigative Producer for Special Projects.