John Fund: What was Sandy Berger trying to hide?

Paper Chase

Did investigators turn a blind eye to the seriousness of the Sandy Berger scandal?

Monday, January 29, 2007 12:01 a.m. EST

The Wall Street Journal

Washington scandals are curious things. Sometimes special prosecutors are appointed and the media provide saturation coverage of their doings. An example would be the Valerie Plame episode, which led to this month's perjury trial of Scooter Libby, the former White House aide accused of lying about who first told him Joe Wilson's wife worked for the CIA.

Then there are the barely noticed scandals, which prosecutors pursue quietly and professionally. Take the case of Donald Keyser, a former State Department official who last week was sentenced to just over a year in jail for keeping classified documents at his home and for lying about his personal relationship with a Taiwanese diplomat.

Then there is Sandy Berger, the former Clinton national security adviser who pleaded guilty last year to knowingly taking and destroying classified documents from the National Archives while preparing for his testimony before the 9/11 Commission. When archives officials caught Mr. Berger, they bizarrely first asked a friend of his, former Clinton White House counsel Bruce Lindsey, for an explanation, rather than contact the Justice Department. After initially lying to investigators, Mr. Berger finally admitted that he took the documents, but only for "personal convenience."

Prosecutors accepted Mr. Berger's assurance that he had taken only five documents from the archives, even though on three of his four visits there he had access to original working papers of the National Security Council for which no adequate inventory exists. Nancy Smith, the archives official who provided the materials to Mr. Berger, said that she would "never know what if any original documents were missing." We have only Mr. Berger's word that he didn't take anything else. The Justice Department secured his agreement to take a polygraph on the matter, but never followed through and administered it.

The issue is still relevant. Officials of the 9/11 Commission are now on record expressing "grave concern" about the materials to which Mr. Berger had access. A report from the National Archives Inspector General last month found he took extraordinary measures to spirit them out of the archives, including hiding them in his pockets and socks. He also went outside without an escort and put some documents under a construction trailer, from where he could later retrieve them.

After archives staff became suspicious of Mr. Berger during his third visit, they numbered some of the documents he looked at. After he left, they reviewed the documents and noted that No. 217 was missing. The next time he came, the staff gave him another copy of 217 with the comment that it had been inadvertently not made available to him during his previous visit. Mr. Berger appropriated the same document again.

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What could have been so important for Mr. Berger to take such risks? Was he trying to airbrush history by removing embarrassing information about the Clinton administration's fight against Osama bin Laden? As columnist Ron Cass has noted with dry understatement, "Bill Clinton has great sensitivity to his place in history and to accusations that he did too little to respond to al Qaeda." Last year the former president blew up when Chris Wallace of "Fox News Sunday" asked him, "Why didn't you do more to put bin Laden and al Qaeda out of business when you were president?"
Richard Miniter, author of "Losing bin Laden," notes that in 1996 President Omar al-Bashir of Sudan wrote Mr. Clinton a letter offering to hand over bin Laden, then living in Khartoum. A draft of that document was seen on the desk of a Sudanese official by then-U.S. Ambassador Tim Carney. The document itself has never been found, although there is no suggestion it was among the papers Mr. Berger was perusing.

Despite all of these unanswered questions, Mr. Berger was allowed to plead guilty last year to only a misdemeanor charge. As part of a plea agreement, the Justice Department asked him to pay a $10,000 fine for the violations, perform 100 hours of community service and lose his security clearance for just three years (meaning that he will be eligible to regain it just about the time the next president takes office). The presiding judge, outraged at the lenient plea bargain, bumped the fine up to $50,000.

The Inspector General's report found that the papers Mr. Berger took outlined the adequacy of the government's knowledge of terrorist threats in the U.S. in the final months of the Clinton administration--documents that could have been of some interest to the 9/11 Commission, before which Mr. Berger was scheduled to testify. The Washington Post buried news of the Inspector General's report on page 7; the New York Times dumped it on page 36.

But the report did catch the attention of Rep. Tom Davis, the ranking Republican on the House Oversight and Government Reform Committee, who last month, while he was still committee chairman, finished his own probe of the Berger affair. This week he and 17 other top Republicans wrote to Attorney General Alberto Gonzales to detail the deficiencies the committee has found in the Justice Department's handling of the Berger case. They specifically asked him to administer the polygraph examination that Mr. Berger agreed to but was inexplicably never given.

While a polygraph is not admissible in court, it is a valuable tool investigators can use to lead them to other evidence. Andrew Napolitano, a former judge who is a legal analyst for Fox News, notes: "If they ask him, did you take document X, Y, Z, and he says no, and the polygraph shows that he's lying, that will send them on a hunt for document X, Y, Z." In addition, Mr. Berger would have to take the test under oath and thus could be prosecuted for perjury if he lied, even though his document-theft case is closed.

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Philip Zelikow and Daniel Marcus, respectively the executive director and general counsel of the 9/11 Commission, told Mr. Davis's investigators that they were never told Mr. Berger had access to original classified documents for which no copies existed. Had he known, Mr. Zelikow says, he would had "grave concern."

As it was, the 9/11 Commission was not informed of any investigation of Mr. Berger's alleged tampering with documents until only two days before his testimony, and then in only the most vague terms. Not only were the 9/11 Commission not told that Mr. Berger had access to original documents; they were affirmatively led to believe that the commission got all the documents that Mr. Berger took. Both Mr. Zelikow and Mr. Marcus understood Justice to mean that there was no way Mr. Berger had taken any other documents. An investigator for the House Oversight and Government Reform Committee bluntly told Fox News last week: "The Justice Department lied to the 9/11 Commission about Sandy Berger. That is a fact." A Justice Department spokesman still insists it "has no evidence that Sandy Berger's actions deprived the 9/11 Commission of documents." But that raises the question: How hard did Justice look for such evidence?

The 9/11 Commission wishes it had known answers to that and more. It's time that Congress and the public learn why the Berger scandal was treated so nonchalantly.