The Berger Wrist Slap: A Dangerous Precedent

April 5, 2005

It is very troubling, though not surprising, that the Justice Department is barely going to slap Sandy Berger’s wrists for intentionally violating a criminal law critical to our national security.

Berger, a national security adviser in the Clinton administration, was caught red-handed removing sensitive, classified documents from the National Archives.

He wasn’t doing something as innocuous as research for his personal memoirs. No, he was preparing for testimony before the 9/11 Commission to vindicate Bill Clinton’s performance in response to the terrorist threat. The documents he secreted, purloined, and later deliberately destroyed, were exceedingly relevant to the subject matter of his 9/11 testimony.

The documents were drafts of a damning “after-action review” by anti-terrorist expert Richard Clarke of the Clinton administration’s actions in thwarting an attack by Al Qaeda against America during the millennium celebration. The report revealed “glaring” national security weaknesses and attributed prevention of the attack to “luck.”

Under a plea agreement with the government, Berger will be fined $10,000 and his national security clearance will be suspended for three years. The Justice Department rationalized this absurd lenience by saying, “Berger did not have an intent to hide any of the content of the documents” or conceal facts from the commission. He destroyed copies, not originals. He wasn’t trying to cover-up Clinton administration incompetence, but took the documents because it would be more convenient to prepare for his testimony in his office.

What kind of message is Justice sending here? It seems the Bush administration bends over backward to avoid placing its predecessor in a negative light. Remember the way it buried the trashing of the White House by outgoing Clinton personnel?

Perhaps the administration is also giving Berger the benefit of the doubt because of his “distinguished career” and stature. But doesn’t Berger’s stature — in a society supposedly committed to the rule of law — militate against leniency?

Indeed, because of his particular expertise and the important government position he held, Berger arguably should be held to a higher standard than your common classified document thief. Berger, of all people, should know the importance of protecting sensitive national security information.

But by this plea agreement, are we not — in a time of war when national security means everything to the preservation of the republic and protection of American lives — saying these rules are merely technical and not that important?

Keep in mind we are not talking about some innocent mistake, as Berger deceitfully euphemized his crime when first caught in the act. He has admitted that he took the documents deliberately and surreptitiously.

Even if Berger didn’t hide the documents in his socks or underwear, he was, by his own admission, hiding them. Moreover, as others have pointed out, he revealed his criminal intent by meticulously shredding the documents with scissors.

Why is the Justice Department so anxious to believe Berger’s motives were not to obstruct the commission, but only to make his preparation for testifying before the commission more convenient?

We now know Berger deliberately took the documents knowing it was against the law to do so. He acted with malice aforethought. He later lied repeatedly in saying he took them by mistake. The documents pertained to the competence of the Clinton administration in responding to the terrorist threat when that question was directly at issue before the commission and part of the fiercely partisan political debate of the day. Berger had every interest in making the Clinton administration look good in the very area addressed by the Clarke memo. Is it just a coincidence that the documents he took and destroyed pertained specifically to these questions and were unfavorable to the administration he served?

Where are the Democrats on this issue? Are they not the ones who have been obsessed with retrospectives and endless self-flagellating investigations into how our intelligence agencies failed, implying that we could have prevented 9/11?

Given the gravity they attach to these investigations, how can they possibly understate the significance of Berger’s crime? His actions — even if you naively believe they weren’t in furtherance of a Clinton cover-up — grossly undermined the integrity of our investigative process and national security in general.

I have no desire to see Berger in jail, but we darn well should be sure that he loses his national security clearance permanently. If not, we are saying these investigations are really just partisan showmanship, that national security document classification and other security laws are much ado about nothing and that if you’re important enough, you can violate national security laws with virtual impunity.

Justice is setting a dangerous precedent with the Berger plea agreement.