Why This Berger Wasn't Fried

Samuel R. Berger, former national security advisor to President Clinton, has reached an agreement with the Justice Department. He has pled guilty to a misdemeanor, paid a $10,000 fine, and surrendered his security clearance for three years. This results from his illegally removing and destroying classified documents from the National Archives and Records Administration (NARA) on two occasions in 2003. When first confronted, Berger lied about removing the documents, suggesting their removal was inadvertent rather than intentional. The classified documents, copies of originals, were removed ostensibly to help him prepare to testify before the 9/11 Commission. Subsequently, Berger admitted that he knowingly concealed and removed the documents and then destroyed them. Twice.

Does it seem odd that the Justice Department would so readily accept a misdemeanor plea? After all, Berger acknowledged removing one lengthy document on September 2, 2003, and then removing other documents on October 2, 2003. Once might be an accident, but twice is unquestionably an intentional crime.

Berger can hardly claim he was unfamiliar with the national security classification system since he had been President Clinton's national security advisor. Similarly, he can't argue that he was unaware that what he did was illegal and jeopardized the national security.

So why was the Justice Department so willing to barely wrist-slap ol' Sandy? According to Justice Department Public Integrity prosecutor Noel Hillman, it's because there was no evidence Berger intended to destroy or in fact did destroy original documents. But Berger's explanation, described in the Wednesday, April 6, 2005, WSJ.com Opinion Journal editorial Berger's Plea, contradicts his background as a national security advisor. According to the editorial, Berger felt the rules requiring the documents remain in the NARA during examination didn't apply to him.

Berger said he didn't return the documents he stole because he didn't know how. Oh, please! He knew how, he just didn't know how to do it without acknowledging that he had stolen classified material, destroyed the evidence, and then lied to investigators.

The Justice Department's rationalization that the documents were copies rather than originals and so their compromise was less harmful is a diversion. The information is classified and protected because its disclosure would harm the national defense or national security. It matters little that the information was in a copy or an original document. A judge might consider that during sentencing, but it was plain wrong for the Justice Department to consider it in charging and plea bargaining. Theft and unauthorized destruction of classified documents is a crime. Lying to federal investigators is a crime. Berger was trying to find a way to rewrite history or at least present it in the most favorable light before the 2007-2008 campaign and election. Hillman was willing to buy into historical revisionism as a defense against Berger's clearly criminal conduct.

The real answer about Justice's giving Berger a virtual pass may be explained by the three-year security clearance suspension. Only three years? Why not permanent revocation? Well, in three years the country may well have a Democrat president, and Berger's name has been mentioned prominently as a Secretary of State candidate in a 2009 Democrat administration. He would certainly be considered favorably for one of several other national-level positions as well, positions he could not hold without a security clearance.

Some of the people in the Justice Department are hoping that if Berger is elevated in a 2009 Democrat administration, he will remember those in Justice who helped him in 2005. Remember the name Noel Hillman. Sandy Berger will.