War Stories

Berger With a Side of Secret Documents

Is he a criminal or a klutz?

No, really, it was this big
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.

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

Berger claims the removal was inadvertent. His lawyer, Lanny * 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.

Correction, July 22, 2004: This article originally and incorrectly referred to Berger’s lawyer as “Larry Breuer.” (Return to the corrected sentence.)