Hypocrite, Thy Name Is Shelby

With all the noise surrounding the Marc Rich pardon at the end of Clinton’s term, there was another pardon that the Republicans were extremely exercised about. It was surrounding Clinton’s pardon, at the behest of civil libertarians, of a man named Samuel L. Morison, who had been convicted of leaking a classified picture of a soviet ship to Janes Weekly in 1984. Certain Republicans in congress were appalled by this pardon, one of the most vocal of which was Richard Shelby.

Pardoning the only government official ever convicted of leaking classified information, the intelligence chairmen [Porter Goss and Richard Shelby] said, would do nothing to stop a torrent of media leaks in Washington. Indeed, Shelby said the pardon only underscores the need for new legislation explicitly criminalizing leaks.

In fact, he used it as an excuse to reintroduce the “Shelby Amendment” which Clinton had vetoed the year before. Richard Shelby, you see, has had an ongoing obsession about leaks and has been trying to pass laws for years that would make leaking all classified information, whether knowingly or unknowingly, a criminal offense with serious jail time.

According to the St Petersburg Times:

Shelby’s bill would make it a felony punishable by a fine or up to three years in prison for a current or retired government employee to disclose “properly classified information” to unauthorized people. Under current law, a government employee could not be convicted unless the information related directly to national defense and the leaker knew that disclosure would hurt the interests of the United States.

When he vetoed the bill, Clinton said it would impede the normal activities of government. His advisers argued that current law is sufficient but is not always enforced. The news organizations fear the tougher law would result in subpoenas being issued to journalists who published leaked information.

It should be noted that this bill was not universally supported by Republicans. There were quite a few in the libertarian camp who opposed it.

“This legislation contains a provision that will create–make no mistake about it, with not one day of hearings, without one moment of public debate, without one witness–an official secrets act,” Rep. Robert L. Barr Jr. (R-Ga).

[…]

“It has profound First Amendment implications, and goes to the very heart of the ability of the public to remain informed about matters of critical public interest, which often relate to governmental misdeeds,” they [Henry Hyde and John Conyers] wrote. “Moreover, since the Executive Branch asserts unilateral authority to define what information should be classified, this extension would grant the administration a blank check to criminalize any leaking they do not like.”

Shelby, however, was adamant that the amendment was not designed to prosecute the press, but rather government officials who leak information:

“I can assure this body that in passing [the anti-leak provision], no member of the Select Committee on Intelligence intended that it be used as an excuse for investigating the press,” Shelby said in Senate debate.

Clinton vetoed the bill and then pardoned Morison leaving Shelby frothing at the mouth and ready to reintroduce it upon Bush’s inauguration. Strangely, however, just days before 9/11 when he was to convene hearings on the matter, Ashcroft evidently asked him to shelve them until the Justice Department could evaluate the legislation. Like a good soldier, he did. Then came 9/11. Nothing more was heard until the summer of 2002, when Newsmax published this article on July 27, 2002, which they then deleted on August 1st. The Memory Hole retrieved it from the ether:

Whether the classified information is National Security Agency encrypted message intercepts of pre-Sept. 11 chatter, war plans for the invasion of Iraq, or the fact that U.S. intelligence was tracking Osama bin Laden’s wireless phone calls, leaks have more than Defense Secretary Donald Rumsfeld and Vice President Dick Cheney in an uproar.

[…]

“I hope we get a test case, soon, that will pit the government’s need to prosecute those who leak its classified documents against the guarantees of free speech. I’m betting the government will win,” Bruce said to an audience this week at Washington’s Institute of World Politics

[…]

“I helped pushed legislation for years to make it easier to prosecute people who willfully and knowingly leak classified information,” Shelby recently told CBS News.

“President Clinton vetoed that bill several years ago. It might be the time to try to bring it back. I’ve talked to the White House before about this. The attorney general, John Ashcroft, is working — now he’s got a task force working with some of us in the Senate to try to come up with some acceptable legislation. Maybe this fall …”

The Newsmax article above was published on July 27, 2002 and removed on August 1st. There was never any formal explanation. It may be a coincidence, but it’s noteworthy that on June 19th, 2002 someone leaked some extremely sensitive classified information about NSA encrypted intercepts to the media. This information was so sensitive that it caused Dick Cheney and George W. Bush to get very angry and call for members of the intelligence committee to cooperate with a Justice Department investigation into the matter. At the time, Democrats controlled the Senate and Bob Graham was the chairman of the Senate Intelligence Committee.

Richard Shelby was the leaker. But, he didn’t exactly step forward and take responsibility. By September, he began to find himself at odds with both Porter Goss and Bob Graham over how they were conducting the investigation into the 9/11 attacks. In light of what we now know he did, his behavior at that time looks quite suspicious. One might even think he was obstructing the investigation:

Shelby accused Graham and Rep. Porter Goss, R-Fla., who chairs the House Intelligence Committee, of overstepping their authority in keeping information provided by the FBI from other lawmakers and the two committees’ permanent staff. The information has been given to key staffers hired to conduct the joint committees’ inquiry.

“I must insist that we end this policy of withholding crucial information from members and our staff,” Shelby said. “We must not conduct investigations out of the full view of our members.”

[…]

While Shelby supported Graham’s and Goss’ call for an FBI probe into leaks which may have come from the joint committee, he has differed with them over the FBI’s methods. Shelby has protested the possibility that lawmakers might be subjected to lie detector tests to determine if they were the source of the reports.

Although the FBI has not asked for such tests, Graham has said he thinks lawmakers should voluntarily comply.

From what Graham said, the information being offered by the FBI was not necessarily connected to Shelby, but Shelby certainly did seem nervous that he wasn’t privy to what it was. And it was a big turnaround for him to suddenly decry the use of polygraphs:

“I don’t know who among us would take a lie detector test,” says Senator Richard Shelby (R-Ala.). “They’re not even admissible in court.” Shelby’s reticence was an about-face from his stance two years ago, when he spearheaded the expansion of the Department of Energy’s polygraph program as the only effective way of tracking down moles.

CBS reported:

Shelby said leaders of the inquiry realize they made a mistake in asking the FBI to investigate the leaks.

“Here we are investigating the FBI for huge failures and now we’re asking them to investigate us,” he said.

He said it also violates the government’s separation of powers.

“You know the Senate and, I assume the House, has always investigated their own,” he said.

The FBI eventually decided not to prosecute but rather turn it over to the Republican controlled ethics committee. Shelby defends himself by saying:

“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.

If that’s his reasoning, then he owes his current freedom to none other than the hated Bill Clinton. If the Shelby Amendment had been signed into law, it wouldn’t matter if he “knowingly” leaked the information or not, he’d be looking at a possible three year stint in a federal prison. (And, if he were a Democrat, he’d already have been forced to resign.)

He is no longer on the Intelligence Committee (they are rotated after eight years) and now serves as chairman of the Senate Banking Committee where his commitment to principle and accountability are once again being tested as he finds himself implicated in the Tom Delay Westar Scandal.

Richard Shelby is neither ashamed or embarrassed by his blatant hypocrisy and lack of candor. Indeed, when the leak story broke, he got right back on his favorite hobby horse and began railing against unauthorized leaks as if this never happened. Just today, a Boston Globe headline says Senator blasts investigators for naming him as leak:

Shelby’s office said, in a statement released yesterday by his spokeswoman, Virginia Davis, “It bears noting that this story represents a grotesque abuse of a public trust on the part of law enforcement.

“For someone in law enforcement to express one-sided, personal views anonymously to the media while the investigation itself is still underway and while the matter is pending before the Senate Ethics Committee is unprofessional and grossly unfair,” Shelby’s statement said.

Sometimes, you just have to step back and admire the sheer audacity of these guys.