Berger Investigation Stretches Into Second Year
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More than a year after President Clinton’s top national security adviser, Samuel Berger, walked out of the National Archives with top-secret documents, a criminal investigation into the matter remains open with no sign of any imminent action.
Legal and national security experts say the delay may be an indication of how Mr. Berger’s case has put the Justice Department in a tough political pickle. If prosecutors hit the former official with a criminal charge, Democrats will complain of a political vendetta. If Mr. Berger is let off with an administrative punishment, such as revocation of his security clearance, hard-liners will squawk about a double standard that overlooks classified information breaches committed by high-ranking officials.
“It’s a complicated calculation,” said a policy analyst at the Federation of American Scientists and a leading authority on classification issues, Steven Aftergood. “Everyone involved, I’m sure, is very uncomfortable with it.”
In September and October 2003, Mr. Berger visited a secure room at the National Archives to review highly classified documents as he, Mr. Clinton, and other former officials prepared to give testimony to the commission investigating the September 11, 2001, terrorist attacks. During one of Mr. Berger’s first visits, workers at the archives became suspicious that he might be removing some documents from the facility, people familiar with the inquiry said. When Mr. Berger returned, the clerks marked the papers so that any missing pages could be detected more easily. When they checked the documents later, some were, in fact, missing. After getting a call from senior officials at the archives, Mr. Berger returned some records but could not locate them all.
Among the documents reported missing were drafts of a Clinton administration after-action review on the handling of the so-called millennium plot to blow up American landmarks. The report, prepared by counterterrorism chief Richard Clarke, described the unraveling of the plot as a matter of luck rather than insightful planning.
In January, FBI investigators trying to locate the missing records carried out search warrants at the offices of Mr. Berger’s consulting firm and at his home, both in Washington.
The probe remained largely secret until July, when word about it was leaked to news outlets. In a statement prompted by the leak, Mr. Berger said he never intended to remove any classified documents from the archives. “In the course of reviewing over several days thousands of pages of documents… I inadvertently took a few documents from the archives,” Mr. Berger said. He also acknowledged taking home his notes about the classified records, another violation of rules for handling such materials.
Mr. Berger’s attorney, Lanny Breuer, angrily denied reports that the ex-official stuffed some documents into his socks.
As a result of the reports, Mr. Berger stepped down from his role as an adviser to the presidential campaign of Senator Kerry. Many Democrats complained bitterly that the leak was intended to produce just that result.
In a brief interview last week, Mr. Berger said he had no indication of when the probe might be completed. “Still no resolution,” he said.
Mr. Breuer also said he’s gotten no update from the government. “There’s really nothing to report,” he said in an interview Monday. “Things are status quo. We’ll see what happens.”
A spokesman for the Justice Department, Mark Corrallo, said he had no comment on the investigation.
Several legal experts said a key standard that prosecutors must consider is the handling of a similar case involving a former director of central intelligence under Mr. Clinton, John Deutch.
“That is the benchmark,” said a former federal prosecutor, Joseph diGenova.
During the early and mid 1990s, Mr. Deutch repeatedly typed up and copied highly classified documents on his home computer, which was often connected to the Internet. After his practice was discovered when he left the agency in 1996, Mr. Deutch was investigated by the Justice Department, which initially declined to prosecute. However, the then attorney general, Janet Reno, re-opened the case after an outcry from some in the CIA and in Congress.
Mr. Deutch eventually agreed to plead guilty to a misdemeanor offense of mishandling classified data and to pay a $5,000 fine. However, the plea was never formally entered because Mr. Clinton, during his final hours in office, granted a pardon to Mr. Deutch.
Mr. diGenova, a Republican who once served as an independent counsel, said the government will have to cancel Mr. Berger’s security clearance, if it has not already done so. However, he said that alone will not be sufficient to meet the standard the Justice Department applied to Mr. Deutch.
“It is, to me, not a complicated matter,” the former prosecutor said. “The facts as publicly known make it very difficult for the department not to charge him with some offense. It doesn’t have to be a felony.”
Mr. diGenova said he is dubious of the explanation Mr. Berger has offered thus far. “I don’t care how much of a bumbler he was. There’s more to this story. I want to know what it is,” the former prosecutor said.
He added that undue leniency towards Mr. Berger “will not sit well with troops who get suspended from duty and pay suspensions for mishandling classified documents.”
Mr. Breuer declined to discuss whether he considers Mr. Berger’s situation similar to that involving Mr. Deutch.
Mr. Aftergood, the classification expert, said the probe has already had a serious impact on Mr. Berger’s reputation and his livelihood as an international business consultant.
“Arguably, Berger has already been severely punished by being publicly humiliated and by having his participation in the Kerry campaign derailed,” Mr. Aftergood said. “It could well be argued that justice has been served already and that no further expenditure of government resources is warranted.”
“In both cases, the New York Times obit for them is going to mention these instances, and that’s a hard thing to get past,” Mr. Aftergood said. “What means more to these people than their reputation?”
An attorney who was a Justice Department official under President Reagan, Bruce Fein, said he believes that any criminal action against Mr. Berger would step up calls for prosecution over the alleged leak of the identity of CIA operative Valerie Plame to a conservative columnist, Robert Novak. Many suspect that leak came from the White House.
“The problem the administration confronts is that the display of a rather lackadaisical attitude towards the Bob Novak fiasco and Bush saying, ‘Oh, well … we may never solve this one,’ then to go after Sandy Berger in a situation whether you can’t show that there was in fact harm,” Mr. Fein said. He said a prosecution of Mr. Berger would leave those investigating the leak to Mr. Novak in “an impossible political position.”
Another potential concern for the administration is that it has often taken a tough line against low-level personnel accused of mishandling classified materials.
A former translator at Guantanamo Bay, Ahmed Mehalba, has been in pretrial detention in Massachusetts for more than a year as he awaits trial on one felony count of mishandling classified information and two counts of lying to law enforcement officials. He was accused of having information classified as “secret” on computer disks that were in his luggage as he went through customs at Boston’s Logan Airport last September.
The documents Mr. Berger removed were reportedly classified as “code word,” a special classification level that exceeds “top secret.”
The general counsel to the September 11 commission, Daniel Marcus, said yesterday that archives staff members were able to locate additional copies of the documents Mr. Berger lost. “We had been assured by the Justice Department that the archives still had copies of everything,” Mr. Marcus said yesterday.
Mr. Marcus denounced as “shocking” the original leak about the investigation. He said he wishes the Justice Department would now wrap it up. “It’s just too bad it’s dragged on so long,” he said.