Bergergate

[John Uskglass]

Berger on the 'Wall'
July 21, 2004

We'll grant that visions of a former National Security Adviser stuffing classified documents down his trousers or socks makes for good copy. But count us more interested in learning what's in the documents themselves than in where on his person Sandy Berger may have put them when he was sneaking them out of the National Archives.

For the evidence suggests that the missing material cuts to the heart of the choice offered in this election: Whether America treats terrorism as a problem of law enforcement or an act of war.

Mr. Berger admits to having deliberately taken handwritten notes he'd made out of the Archives reading room. On the more serious charges involving the removal (and subsequent discarding) of highly classified documents -- including drafts of a key, after-action memo Mr. Berger had himself ordered on the U.S. response to al Qaeda threats in the run-up to the Millennium -- he maintains he did so "inadvertently."

There's only one way to clear away the political smoke: Release all the drafts of the review Mr. Berger took from the room.

If it's all as innocent as Mr. Berger's friends are saying, there's no reason not to make them public. But there are good reasons for questioning Mr. Berger's dog-ate-my-homework explanation. To begin with, he was not simply preparing for his testimony before the 9/11 Commission. He was the point man for the Clinton Administration, reviewing and selecting the documents to be turned over to the Commission.

Written by Richard Clarke for the NSC, the key document was called the Millennium After-Action Review because it dealt with al Qaeda attacks timed for the eve of the Millennium celebrations. In his own 9/11 testimony, Mr. Berger described these al Qaeda plans as "the most serious threat spike of our time in government." He went on to say that they provoked "sustained attention and rigorous actions" from the Administration that ended up saving lives.

But Attorney General John Ashcroft, who has the advantage of having read the document in question, had a different take. In his own 9/11 testimony in April, Mr. Ashcroft recommended that the Commission "study carefully" the after-action memo. He described it as laying out vulnerabilities and calling for aggressive remedies of the type he and the Bush Administration have been criticized for. Mr. Ashcroft further noted that when he took office, this "highly classified review" was "not among" the items he was briefed on during the transition.

Maybe that is because of the potential for embarrassment at the mentality the memo reveals. Mr. Ashcroft testified that the Justice Department's "surveillance and FISA operations were specifically criticized for their glaring weaknesses." The most glaring, of course, were the restrictions on the sharing of critical information between intelligence and law enforcement -- even within the FBI itself. This was the infamous "wall of separation" that Clinton Deputy AG Jamie Gorelick instructed the FBI director should "go beyond what is legally required."

From today's vantage we can see the consequences. Ahmed Ressam was one of the would-be Millennium bombers whom the French had identified to U.S. intelligence agencies as an al Qaeda operative planning to attack America. But the "wall of separation" meant that when an alert U.S. customs officer stopped Ressam as he tried to enter the country from Vancouver, the Justice Department had no idea who he was. This helps illuminate the claim made in the missing memo, according to Mr. Ashcroft's testimony, that our success in stopping these 1999 attacks was a result of sheer "luck."

Assuming Mr. Ashcroft's characterizations under oath are true, it would explain why Mr. Berger's "inadvertent" actions seemed to zero in on the various drafts of this review. Sources tell us that Archives staff noticed documents missing after one of Mr. Berger's visits. After gently raising the issue with him, they were shocked to have him return other documents they hadn't even noticed missing. The result was that the next time Mr. Berger went to the Archives, the documents he was given were all marked.

Mr. Berger attributes the disappearance of this classified information to the kind of "sloppiness" that comes from reviewing "thousands of pages of documents." But it strikes us as amazing that mere sloppiness could account for how Mr. Berger seized on the same memo during two different visits.

We're not interested in rehashing what the Clinton Administration or even Mr. Berger did or didn't do vis-a-vis the al Qaeda threat pre-9/11. Nor are we much interested about Mr. Berger's troubles with the law. What does interest us is what this memo might tell us about how America should respond to terror.

Given Mr. Berger's role (until he resigned yesterday) as a Kerry adviser, surely this is something worth debating. And if the missing memos say what Mr. Ashcroft has hinted they do, we can well understand why Mr. Berger would want to keep them in his trousers during a crucial election year.

Forgive me for the suffix, but this looks bad.

 

[Murdoch]

Or not. Reprinted from www.Slate.com

Military analysis.

Berger With a Side of Secret Documents
Is he a criminal or a klutz?
By Fred Kaplan
Posted Wednesday, July 21, 2004, at 3:40 PM PT

No, really, it was this big
Is Samuel "Sandy" Berger a criminal, a pilferer, a sneak, or just clumsy?

Nearly a year ago, we just learned this week, Berger—who was President Clinton's national security adviser—removed some highly classified documents from the National Archives without permission and failed to find one or two of them when officials discovered they were missing and asked him to give them back.

Berger had been poring over hundreds of documents, at Clinton's request, in preparation for testimony before the 9/11 commission. This was legal and routine. The federal statute controlling the National Archives and Records Administration states, "The presidential records of a former president shall be available to such former president or his designated representative." Berger was the designee.

Continue Article

However, the statutes expressly forbid anyone from taking such documents out of the building.

Berger claims the removal was inadvertent. His lawyer, Larry Breuer, explained to CNN's Wolf Blitzer that Berger had brought a leather portfolio into the archives vault and, somehow, a couple of documents—including a copy of Richard Clarke's 15-page "millennium threat" report—got "enmeshed" in his own papers. Berger didn't know he was removing any documents. A month later, when archive officials told him the documents were missing, he returned most of them. At least one document was missing and may have been thrown away.

A few questions come to mind:

How typical was Berger's action—or, depending how you see it, his lapse? Did it have any impact on the 9/11 commission's investigation? Did he swipe the document for political purposes? Could the act have damaged national security? Whatever the motives or impact, was the act criminal?

First, was it typical? Many former officials—even if their security clearances have long expired—obtain permission to enter the vaults and read classified documents dealing with matters from their heyday. They do this not only to prepare for official investigations, as Berger did in this case, but also to research their memoirs. Two U.S. archivists, who asked not to be identified, told me that they don't know of any cases in which ex-officials sneak documents home (and sneak them back in) but that they'd be surprised if it never happened.

In this respect, some of the recent news accounts are just odd. A few stories noted that archive officials saw Berger stuffing documents in his pants pocket, jacket pocket, and even in his socks. This seems unlikely. First, if these officials saw this going on, why didn't they report it or confront Berger directly at the time? Second, whenever anyone examines classified material in a vault at the National Archives, a security official watches what's going on all the time. Berger could not have surreptitiously tucked away some secret papers while nobody was looking. Third, the two U.S. archivists tell me that the archive's guards almost never inspect ex-officials' briefcases when they leave the vaults or the building. Berger had a portfolio for papers. Surely if he'd wanted to take some papers out, he could have stuffed them into it. (Berger's lawyer said he'd put some notes in his pocket—more plausible, though also, it should be noted, improper. Section 202 of the National Archives' "Information Security Manual," which is not on the agency's Web site, states that anyone allowed access to the vaults must agree to "a review of his or her notes to make sure they do not contain classified information.")

Second, did this have any impact on the investigation? Did Berger (as at least one Republican charged) block the 9/11 commission from seeing any documents that might have been embarrassing to the Clinton administration? Clearly not. The commission saw everything, including the papers Berger was examining, well before Berger did.

Third, Berger was an adviser to John Kerry's campaign. (He quit over this fracas.) Republicans are accusing him of swiping the documents and handing them to Kerry as political ammo. This makes no sense. As a member of the Senate Foreign Relations Committee, Kerry could obtain the documents—which had also been supplied to the 9/11 commission—of his own accord. More than that, Kerry's chief national security adviser, Rand Beers, was a staff member of the National Security Council, working on terrorism, under Presidents Clinton and Bush. He saw these documents, probably helped write some of them; he could certainly tell Kerry about them.

Fourth, could the removal have affected national security? This question does raise genuine, if somewhat abstract, issues. Officials have been known to drop secret documents in public places. One could imagine Berger stopping off at a bookstore on the way home, setting the portfolio down, then forgetting about it—especially if he really is as disorganized as his lawyer suggests. This is why rules on unauthorized removal of classified documents exist. Berger isn't a security risk, but some stranger at the bookstore—or someone riffling through his garbage cans (if Berger really did throw the documents away)—might be.

Fourth, in any case, was the removal illegal? Breuer told CNN, "He knew it was a violation of archive procedure. It's not against the law."

Well, that's not quite the case. As Breuer acknowledged, the Justice Department has been investigating the incident since October. It seems highly unlikely that the probe will lead anywhere. But if John Ashcroft is determined to indict Berger on the matter, there are statutes he could cite.

Most pertinent is Title 18 of the U.S. Code, Section 793: "Gathering, transmitting or losing defense information." Much of this law deals with the intentional dissemination of classified materials that the violator knows could endanger national security. But it deals with less willful sins as well. For example, there's subsection (f).

Subsection (f) pertains to anyone "entrusted with, or having lawful possession or control" of, a document, photo, plan, map, or any other information "relating to the national defense." If this person, "through gross negligence, permits the same to be removed from its proper place of custody … or to be lost, stolen, abstracted, or destroyed," he or she "shall be fined under this title or imprisoned not more than 10 years, or both."

This isn't some technicality of which Berger could claim ignorance. Anyone (including a presidential designee) who wants access to the secret archives must sign Standard Form 312, a "classified information non-disclosure agreement," which clearly states that failure to follow regulations may violate 18 U.S.C. 793.

So, under a viciously strict reading of this statute, Sandy Berger could go to jail for 10 years.

The odds are extremely slim that even a politically vindictive attorney general would push the matter this far. For one thing, there's the key phrase "through gross negligence." It is not at all clear that this phrase describes Berger's action. Breuer's explanation—that the documents got "enmeshed" in his private papers—isn't entirely implausible; certainly it falls within the shadow of a reasonable doubt. For another, there's no evidence and not the slightest reason to believe that Berger passed the documents to anyone unauthorized to see them. Although that's not an explicit criterion for enforcing the law, it's hard to imagine a prosecutor, judge, or jury imposing its penalties on someone who was, arguably, merely careless.

So, what does this amount to? At minimum, a stupid, careless act. It is conceivable that Berger deliberately slipped the papers into his portfolio so that, say, he could have a chance to read them more carefully at home. It is also conceivable—though less so—that he accidentally mixed the archive's papers into his own. (If he did mix them by mistake, he almost certainly would have spotted them before a month had passed, and in such cases, 18 U.S.C. 793(f) requires a "prompt report" of the removal.)

Either way, two things are clear:

First, this whole to-do should have no bearing on the presidential campaign; the leaking of the Justice Department investigation reveals a desperation on the part of the White House or the Republican National Committee to enmesh Clinton and Kerry in a cloud of blame just before the release of the 9/11 commission's report.

Second, Sandy Berger should forget about being appointed to a national security post ever again.

Fred Kaplan writes the "War Stories" column for Slate.
Photograph of Sandy Berger by Kevin Lamarque/Reuters.

I don't think he is guilty of anything but petty negligence. True, I am probably biased in my assessment, but in the end, I think this was a politically motivated event, esp when you consider the timing that the article addresses.

In the end it'll blow over without issue, other than the loss of an otherwise competent operative for the country.

 

[John Uskglass]

Guards left Berger alone, sources say
Ex-security adviser reportedly told monitors to violate rules as he took breaks, took files.

By James Gordon Meek
New York Daily News

Washington — Former national security adviser Sandy Berger repeatedly persuaded monitors assigned to watch him review top-secret documents to break the rules and leave him alone, sources said Wednesday.
Berger, accused of smuggling some of the secret files out of the National Archives, got the monitors out of the high-security room by telling them he had to make sensitive phone calls.

Guards were convinced to violate their own rules by stepping out of the secure room as he looked over documents and allegedly stashed some in his clothing, sources said.

"He was supposed to be monitored at all times but kept asking the monitor to leave so he could make private calls," a senior law enforcement source told the Daily News.

Berger also took "lots of bathroom breaks" that aroused some suspicion, the source added. It is standard procedure to constantly monitor anyone with a security clearance who examines the type of code-word classified files stored in the underground archives vault.

The same archives monitors told the FBI Berger was observed stuffing his socks with handwritten notes about files he reviewed that were going to the Sept. 11 panel. It is prohibited to make notes about the secret files and leave with them without special approval.

Berger's attorney, Lanny Breuer, has denied the allegation that Berger hid papers in his socks.

 

[Sander]

Kerry will probably have to fire this guy and get a new one. Whether or not the guy did it or not, even the possibility of him having done it on purpose is too damaging to Kerry's campaign. Heh.

 

[John Uskglass]

He already did.

This could not have come at a better(or worse) time. It'll steal large amounts of thunder from the DNC.