Davis won’t give up probe into Berger-Archives case

The outgoing chairman of the House Government Reform Committee says questions remain about former National Security Adviser Samuel R. Berger’s removal of classified documents from the National Archives and pledged yesterday to get the answers.

“I don’t care if it’s Sandy Berger or Warren Burger or Veggie Burger who walked off with these documents,” said Rep. Thomas M. Davis III, Virginia Republican. “It’s the lax controls that permitted such a theft; it’s the way it was handled internally at the Archives and then by [the Justice Department] that is of grave concern.”

In October, Mr. Davis led an effort by top House Republicans to investigate and hold hearings on which documents might have been “destroyed, removed or were missing.”

Democrats assume control of Congress next month, and the request is expected to be shelved. But Mr. Davis said his staff continues to look into the matter, and a final investigative report is expected next month.

Mr. Davis noted that during three visits by Mr. Berger to the Archives, he was given access to three categories of documents: National Security Council (NSC) numbered documents, printed copies of e-mail messages and attachments, and staff member office files (SMOFs).

He said the SMOFs contain the working papers of NSC staff members, including Mr. Berger, and their content is not inventoried by the Archives at the document level. He said that the SMOFs given to Mr. Berger during his first two visits contained only original documents and that there is “no way to determine” whether Mr. Berger “swiped any of these original documents.”

As a result, Mr. Davis said, there is no way to know whether Mr. Berger gave the September 11 commission the documents he said he was seeking at the Archives in response to the panel’s requests.

“At best, Berger’s actions portray a disturbing breach of trust and protocol,” Mr. Davis said. “At worst, however, Berger’s actions suggest an intentional effort to keep critical information away from the 9/11 commission and the American public.

“Our work has not concluded, and we fully expect to continue our oversight efforts with respect to this matter,” he said.

Mr. Berger, national security adviser under President Clinton from 1997 to 2001, pleaded guilty in April 2005 to a misdemeanor charge of unauthorized removal and retention of classified material — including documents outlining the government’s knowledge of terrorist threats to the United States.

He was fined $50,000 and barred from access to classified material for three years. He had faced a year in prison and a $100,000 fine, but a plea agreement with the Justice Department reduced the fine and kept him out of jail.

Prosecutors had recommended a fine of $10,000, but U.S. Magistrate Judge Deborah A. Robinson increased it to $50,000 at Berger’s sentencing, saying the lower figure did not “reflect the seriousness of the offense.”

The removal of the material occurred while Mr. Berger was preparing to testify before the September 11 commission investigating intelligence and security failures — raising questions about whether he was attempting to cover up the Clinton administration’s counterterrorism policies and actions.

On Wednesday, the National Archives Office of Inspector General said Mr. Berger hid the documents under a construction trailer where they could be retrieved easily. It said he left the building unescorted for a break and placed the papers “in an accessible construction area outside” the main Archives building.

The report said Mr. Berger put the documents “in his pockets, headed toward a construction area … looked up and down the street … did not see anyone” and then slid them under the trailer.

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