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Sandy Berger: What Did He Take and Why Did He Take It?

By Ronald A. Cass

Some things cry out for explanation. Like finding $90,000 in marked bills in a Congressman's freezer. Or finding out that a blue-chip lawyer who held one of the most important jobs in the nation was willing to risk his career, his livelihood, and his liberty to steal, hide, and destroy classified documents.

We all have a pretty good idea what the money was doing in Representative William Jefferson's freezer. But the questions about President William Jefferson Clinton's National Security Adviser, Sandy Berger, just keep piling up.

It's time we got some answers.

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According to reports from the Inspector General of the National Archives and the staff of the House of Representatives' Government Operations Committee, Mr. Berger, while acting as former President Clinton's designated representative to the commission investigating the attacks of September 11, 2001, illegally took confidential documents from the Archives on more than one occasion. He folded documents in his clothes, snuck them out of the Archives building, and stashed them under a construction trailer nearby until he could return, retrieve them, and later cut them up. After he was caught, he lied to the investigators and tried to shift blame to Archive employees.

Contrary to his initial denials and later excuses, Berger clearly intended from the outset to remove sensitive material from the Archives. He used the pretext of making and receiving private phone calls to get time alone with confidential material, although rules governing access dictated that someone from the Archives staff must be present. He took bathroom breaks every half-hour to provide further opportunity to remove and conceal documents.

Before this information was released, the Justice Department, accepting his explanation of innocent and accidental removal of the documents, allowed Berger to enter a plea to the misdemeanor charge of unauthorized removal and retention of classified material - no prison time, no loss of his bar license. The series of actions that the Archives and House investigations detail, however, are entirely at odds with protestations of innocence. Nothing about his actions was accidental. Nothing was casual. And nothing was normal.

What could have been important enough for Berger to take the risks he did? What could have been important enough for a lawyer of his distinction to risk disgrace, disbarment, and prison?

To paraphrase the questions asked of Richard Nixon by members of his own Party, what did he take and why did he take it?

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The report released by Rep. Tom Davis last week makes plain that right now we cannot answer those questions. We cannot say what information in fact was lost through Mr. Berger's actions.

At President Clinton's request, he reviewed highly confidential material during four visits to the Archives over four months. Only Mr. Berger knows what transpired on his first two visits, when he reviewed collections of confidential memos, e-mails, and handwritten notes, including materials taken from counter-terrorism adviser Richard Clarke's office - all of which were not catalogued at the individual item level.

On Mr. Berger's third visit Archives employees became suspicious that he might be removing classified material. Rather than directly confront a former Cabinet-level official, Archives officials simply took steps to identify further theft on succeeding visits. That is how Mr. Berger's thefts on his fourth and last visit were documented.

We don't know what Mr. Berger might have removed from the uncatalogued materials reviewed in his earlier visits, but we know his last visit focused on a memorandum called the Millennium Alert After Action Report (MAAAR). Copies of this report were made available to the 9/11 Commission, but the information in those copies undoubtedly is not what interested Berger most. Berger took five copies of the report and later destroyed three of them.

What was on the copies he destroyed? Handwritten notes from Berger, the President, or some other official? Observations that would be embarrassing to them, evidence they missed an important threat or considered or recommended actions - or decisions not to act - they wouldn't want to defend in public? Evidence, perhaps, that would have supported the Bush Administration? We don't know, and no one who does is saying, but the evidence must have been terribly damning for Berger to take the risks he did.

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There are good reasons to protect sensitive communications within the government. Some discussions should be private if presidents are to have the best advice and the nation is to have the best decisions on sensitive matters. The President and top officials should be able to explore options and discuss threats - among themselves and with their key staff members - without fear that a remark taken out of context or poorly phrased will come back to haunt them.

Laws that endeavor to strike the balance between salutary confidentiality and beneficial public disclosure at times tilt too far to disclosure. In public debate, advantages of disclosure are often easier to explain than advantages of secrecy. That, in part, follows from the nature of secrets - if you don't reveal them, you can't explain fully why they should have stayed secret.

The Berger episode, however, strictly involves materials that are supposed to be turned over under the law, materials specifically covered by a presidential directive that authorized sharing the information with those investigating 9/11 intelligence-gathering and evaluation. Mr. Berger's willingness to risk everything to suppress the information goes well beyond ordinary concerns against excessive disclosure.

Bill Clinton obviously has great sensitivity to his place in history and to accusations that he did too little to respond to al-Qaeda, that he is to some degree responsible for failing to prevent 9/11's tragedy. That is why he and his lieutenants made reckless and baseless accusations against the current Bush administration, attempting to portray them as having dropped the baton handed off by ever-vigilant Clintonistas (who, according to John Ashcroft's testimony, withheld the MAAAR and its warnings about al-Qaeda's operations in the US from the Bush transition team).

But maybe there is more to the story. Maybe there is something far worse than we can imagine that is worth having his chief security aide risk his reputation, his career, and his liberty to cover up.

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Mr. Berger, the Clintons, and their allies do not want questions about this story asked or answered. Mr. Berger's lawyer, Lanny Breuer, along with former Clinton officials, assured us that all of the material destroyed by Berger existed in other form and was made available to the 9/11 investigations, that nothing relevant to the Clinton Administration's response to al-Qaeda was withheld.

Of course, we also were assured that Monica had only imagined a relationship with Bill and that rumors to the contrary were, in Hillary's famous phrase, the work of a "vast right-wing conspiracy."

Politicians never like to admit mistakes. They see legitimate inquiries as politically inspired, which they often are. Changing the subject or shifting blame to others aren't tactics peculiar to the Clintons.

The Clintons, however, take the game of deny-deceive-and-distract to a new level. Their relentless personal attacks on Ken Starr were designed to undermine the credibility of information about Bill Clinton's perjury, to deflect attention from his own failings. Clinton's excessive reaction - complete with hyperbole, finger-wagging, and scolding - to a simple question from Fox News' Chris Wallace about his response to al-Qaeda is in the same vein. Something here touches a nerve.

That nerve is exposed in the Sandy Berger saga. This story at bottom is about the security of our nation, about what was - or was not - done to protect us from the most shocking and deadly attack on American citizens by foreign agents in our nation's history. This story is critical not only to understanding our past but also to securing our future. It can help us understand what it is reasonable to expect can be done to keep us and our loved ones safe from harm. It is, in short, as important a story as there is.

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It is a story the news media should be desperate to explore, not desperate to avoid.

They should want to know the full story, no matter what the implications are for the legacy of a president much loved by an overwhelmingly liberal media or what the risks are for a former First Lady whose future is tied to her husband's past. Those risks loom especially large before a field of potential Republican presidential candidates with strong reputations in security matters - like Rudy Giuliani, for example, whose courageous performance on 9/11 still resonates.

Those who wrap themselves so frequently in the mantra of the people's right to know should want to know the truth - all the time. Sadly, today's would-be Woodwards and Bernsteins look more like ostriches than hawks, showing no curiosity about what Sandy Berger was hiding. Had that been the attitude when Watergate first appeared as a minor news story, Richard Nixon would have served out his full second term. The rest, as they say, is history.

Mr. Cass, Chairman of the Center for the Rule of Law and Dean Emeritus of Boston University School of Law, served Presidents Ronald Reagan and George H.W. Bush as Commissioner and Vice-Chairman of the US International Trade Commission.

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