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Sandy Berger and the Clinton Cover-Up - Why It Matters

By Ronald A. Cass

On May 17th, Sandy Berger, President Bill Clinton's National Security Adviser, voluntarily gave up his law license and with it the right to practice law. That is a stunning move for an accomplished lawyer, one of the nation's most influential public officials. Someone should take note. In fact, everyone should.

Berger previously entered a deal with the Department of Justice after he was caught stealing and destroying highly sensitive classified material regarding the Clinton Administration's handling of terrorism issues. That deal allowed him to avoid jail time, pay a modest fine, and keep his law license. It also allowed him to avoid full explanation of what he had taken and why he had taken it.

What information was worth risking his reputation, his career, and his freedom to keep hidden? And who was he risking that for?

Recently, the Board of the DC Bar, which had granted Berger his license, began asking those questions. There was only one way to stop that investigation, to keep from answering questions about what he did and why he did it, to keep the Bar from questioning his colleagues in the Clinton Administration about what had been in the documents Berger destroyed.

Berger took that step, surrendering his license, and stopping the investigation.

Ordinarily, anyone who has spent the time, effort, and money needed to master one of the "learned professions" fights with the utmost determination to keep his license. That is not merely a ticket to practice your chosen profession - it is also a badge of honor and accomplishment. Ask any doctor or lawyer, any architect or CPA, any professional at all, what it means to give that up.

That Berger didn't fight speaks volumes.

*******

President Clinton designated Berger as his representative to the 9/11 Commission and related hearings, which gave Berger special access to highly classified documents in the National Archives relating to the Clinton Administration's handling of al-Qaeda and similar terror threats. Berger got around rules requiring that the documents only be reviewed with Archives' employees present, purposefully stole documents, destroyed them, and lied about it all. When caught, he first blamed Archives employees for misplacing the documents, then admitted having taken them inadvertently (this is the point at which he cut the plea deal), and finally acknowledged what was obvious from the facts that were emerging - he intentionally removed and destroyed documents.

Justice Department officials who investigated the missing documents initially were persuaded that Berger must, as he claimed, have taken documents by mistake and then destroyed them to avoid having sensitive material in his possession. The plea agreement was based on the assumption that Berger was mishandling classified material - not manhandling it.

Now, however, it is clear that there was nothing innocent or inadvertent in Berger's conduct. He has something to hide and, whatever it is, he was terrified that at least some part of it would come out of a non-criminal hearing before the Bar. With no possible criminal charges to face, he could not have claimed a right against self-incrimination. He could no longer get away with saying that he took documents accidentally, took them only to prepare for up-coming hearings (why, then, take five copies of one memo?), or didn't intend to destroy them. He would, in other words, have had to say more than he has so far.

*******

We don't know with any certainty what is missing, which papers exactly are gone, or what notes - and whose notes - may have been on them. Berger's lawyer asserted that the 9/11 Commission had copies of all the material Berger stole and destroyed. But if that is so, why would Berger risk so much to destroy it and be so keen today on avoiding any real inquiry into what he did?

Berger had access to Archives documents that could be critical to understanding what information the Clinton Administration had, what options it considered, and what decisions it took on these sensitive subjects. In addition to primary documents, Berger had access to copies, and the only plausible reason for taking five copies of a single memo is that some had original notes on them from key officials, maybe from Berger or President Clinton.

For Berger to risk jail and disgrace, to then give up the right to practice his profession merely in order to avoid having to answer questions, he must be hiding something important. And if it is that important to him, it is also important to us.

The most likely explanation is that the material Berger destroyed points to a terrible mistake by Berger himself, by President Clinton, or by both. In dealing with al-Qaeda, did they overlook a critical piece of information or miss a chance to stop 9/11? Did the Administration's failure to take a more aggressive posture encourage al-Qaeda's later attacks?

When Fox News' Chris Wallace raised the possibility that Clinton's Administration might have done something more to prevent 9/11, Bill Clinton went into an inexplicable rage on national television. Wallace touched a nerve. So did the DC Bar.

Knowing what information Berger destroyed also might alter views of the current Bush Administration. Was the early support from both Bill and Hillary Clinton for going to war against Saddam based on something we don't know yet that was available to insiders in the Clinton Administration? Was it something that could come back to haunt Hillary and ruin her chances of winning Bill's third term?

Whatever it was, it's likely that what Berger destroyed could have helped us understand what led to the most tragic terror attack in our nation's history and perhaps also help us decide what course - and what Chief Executive - will best to protect our future. The fact that Berger has been able to avoid revealing that information is a scandal of its own.

The only person who knows what information was lost is Sandy Berger. And he isn't talking.

*******

What is at stake is more than what we think and say about Sandy Berger. It is more than the legacy of Bill Clinton and of George W. Bush. It is more than the prospects for Hillary Clinton becoming the Democrats' presidential nominee and ultimately the President. All of these, of course, are wrapped up in this story.

Our security and vitality of the rule of law in America are at stake as well. That should concern all whose lives and loved ones may be at risk if our nation follows the wrong path, not knowing everything that should inform our judgments. It should concern all who respect the law, all who have labored as lawyers and judges, as honorable government officials and voices for even-handed justice.

Sadly, this story doesn't interest the Justice Department, which disposed of the criminal charges leniently based in part on false information from Berger. When faced with the fact that Berger had access to original documents on two occasions before Archives' employees became suspicious enough to start marking documents, the Justice Department declared with confidence that no documents had been taken - they asked Berger if he had taken anything during those visits, he said no, and they let the matter rest.

The story doesn't interest the Democrats in Congress, who prefer spending time investigating why eight political-level appointees were fired - a misstep by the Bush Justice Department that provides more promising political fodder than one that might point back to the Clintons.

The Sandy Berger story doesn't interest the mainstream news media, probably for the same reason. The media elites, so keen in other settings on the people's right to know, don't want to know about this. Maybe if this story involved a Karl instead of a Sandy . . .

Maybe some day someone will step back and wonder why a successful lawyer like Berger would take so drastic a step as surrendering his law license just to evade questions. Someone will ask what could have been so terrible that it was worth that price to keep it hidden. Someone will decide that it's important to know what Mr. Berger is hiding.

Because, in truth, it could affect us all.

Ronald A. Cass is Chairman of the Center for the Rule of Law, Dean Emeritus of Boston University School of Law, and Author of “The Rule of Law in America".


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