- The Washington Times - Tuesday, February 20, 2007

The Justice Department says it is unaware of any new facts to support a call by the former chairman of the House Oversight and Government Reform Committee for a new investigation into the theft of National Archives documents by former National Security Adviser Samuel R. Berger.

Acting Assistant Attorney General Richard A. Hertling, in a letter Friday to the committee’s new Democratic chairman, Rep. Henry A. Waxman of California, said an “extensive investigation” led to a guilty plea by Mr. Berger in which he admitted removing the classified documents and the department “stands by its investigation.”

“The department takes investigations regarding the mishandling of classified information and documents very seriously, and vigorously investigates and prosecutes those who endanger our national security,” Mr. Hertling said.

His letter was in response to a report by Rep. Thomas M. Davis III, Virginia Republican and now the committee’s ranking member, saying Justice gave Mr. Berger a “free pass” in its investigation and called for the committee to investigate the matter instead.

In a terse letter signed by 17 Republicans, Mr. Davis said the Justice Department was “unacceptably incurious” about Mr. Berger’s visits to the Archives in May 2002 and July 2003 and never told the September 11 commission that he removed original, uninventoried documents. Mr. Davis also said the department failed to administer a polygraph examination, despite the test being part of a plea agreement Mr. Berger signed in exchange for a lesser sentence.

Mr. Berger, President Clinton’s national security adviser from 1997 to 2001, pleaded guilty in April 2005 to a misdemeanor charge of unauthorized removal and retention of classified material. He was fined $50,000 and barred from access to classified material for three years.

The material was removed while Mr. Berger was preparing to testify before the National Commission on Terrorist Attacks Upon the United States, which was investigating intelligence and security failures.

David Marin, the oversight committee’s Republican staff director, said the Justice Department told the September 11 commission that it had everything Mr. Berger removed from the Archives and that the nation’s national-security exposure was “zero.”

But, he said, no one told the commission — including September 11 commission Executive Director Philip Zelikow and General Counsel Dan Marcus — that Mr. Berger had access to original documents, which he could have taken without detection.

“We wanted the highest possible level of assurance that Mr. Berger did not take other documents,” Mr. Marin said. “We still have the same concerns. Obvious investigative tools were not used. If you do not look, you will obviously not find the evidence.”

In his letter, Mr. Hertling said the Justice Department and the FBI devoted “significant resources” to the Berger probe, conducted more than 50 interviews, inspected the Archives facilities, and reviewed thousands of pages of documents. He also disputed the report’s conclusion that the department did not inquire about Mr. Berger’s first two visits to the Archives.

“Neither Mr. Berger nor any other witness provided the department with evidence that Mr. Berger had taken any documents beyond the five referenced in the plea agreement,” he said.

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