Monday, April 4, 2005

Martha Stewart went to jail for lying to federal investigators. But for lying after stealing highly classified documents from the National Archives — in an apparent attempt to alter the historical record on terrorism, no less — former Clinton national security adviser and Kerry campaign adviser Sandy Berger will get a small fine and slap on the wrist. He will pay $10,000 and get no jail time. His security clearance will be suspended until around the end of the Bush administration — meaningless for a career Democrat like Mr. Berger. It makes us wonder who at the Department of Justice is responsible for letting such a serious offense go virtually unpunished.

On Friday Mr. Berger pleaded guilty to misdemeanor charges for stealing five copies of one of the nation’s most highly classified terrorism documents. The document, an “after-action” memo on the millennium 2000 terror plot authored by terrorism expert Richard Clarke, is so highly classified that any person removing it from secure rooms must do so in a case handcuffed to his or her wrist. Mr. Berger stuffed the five copies in his coat jacket and secreted them out of the archives. He proceeded to cut three of them to pieces with scissors at his downtown offices. Archive officials observed Mr. Berger stealing the documents and reported it to their superiors.

When confronted, Mr. Berger lied. He told investigators he had mistakenly taken the documents and then disposed of them inadvertently afterward. In public statements on the matter he called the theft “an honest mistake.” He declared his only intent had been to collect materials for testimony about the Clinton administration’s counterterrorism policies for the September 11 Commission. At the time, Bill Clinton dismissed the matter with a chuckle. “The innocent explanation is the most likely one,” Mr. Clinton told reporters in Colorado. “We were all laughing about it on the way over here.”

But it wasn’t innocent, and it wasn’t a laughing matter. As Mr. Berger admitted last week, the account he initially gave federal investigators was wrong. The plea agreement he reached with the Department of Justice details that, in fact, he deliberately removed the documents from the National Archives and that far from disposing of them mistakenly, he cut them to pieces with scissors. None of this was inadvertent, a Berger associate acknowledged last week to the Washington Post.

What was Mr. Berger doing with the documents? And why did he destroy only three? The likeliest answer is that he sought to conceal comments he or other Clinton administration officials wrote on them when they were circulating in January 2000. He couldn’t have been trying to erase the document itself from the record, since copies besides the five exist elsewhere. What’s likelier is that jottings in the margins of the three copies he destroyed bore telling indications of the Clinton administration’s approach to terrorism. Mr. Clarke’s document reportedly criticizes the Clinton administration’s handling of the millennial plots and mostly attributes the apprehension of a would-be bomber headed for Los Angeles International Airport to luck and an alert official.

If that turns out to be the case, Mr. Berger erased part of the historical record on terrorism. The Clinton administration’s cavalier attitude toward terrorism is by now well-established; it’s likely to be evident in the archival records and will crop up in official communications. An after-action report like Mr. Clarke’s, written nearly two years before the September 11 terrorist attacks, is as good a candidate as any for the telling aside in the margin.

Mr. Berger committed an egregious violation of the rules that govern the handling of sensitive national-security documents. His offense would cost most any government employee his job, security clearance and future in government. Quite possibly it would cost him his freedom. On top of his crime, Mr. Berger lied about it to federal investigators. But Mr. Berger won’t likely suffer any of the consequences. For those who suspect that different rules apply at the top, a case like this is reason for cynicism. Meanwhile, his associates from the Clinton years are silent, perhaps hoping the scandal will blow over so Mr. Berger can remain a don of the Democratic foreign-policy establishment.

We can only speculate as to why the Department of Justice would agree to such lenient terms for the offense. Perhaps career employees or holdovers with ties to Democrats are responsible. Perhaps the Bush administration went soft. Whatever the reason, we can be reasonably sure it wasn’t done for reasons of national security, justice or truth.

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