Thursday, July 22, 2004

President Clinton’s former national security adviser Sandy Berger, who resigned Tuesday as an unofficial adviser to Democratic presidential candidate John Kerry, is in trouble.

Mr. Berger is the subject (though not a target) of a Justice Department criminal investigation for his admitted removal of highly classified documents from the National Archives in preparation for his March testimony before the commission looking into the September 11, 2001, attacks.

In a statement, Mr. Berger said he “inadvertently took a few documents from the Archives” and when informed they were missing, he immediately returned everything he had “except for a few documents that apparently I had accidentally discarded.” That’s a lot of inadvertence and accidentalness for such a former high-ranking official.

Imagine the reaction if the current national security adviser, Condoleezza Rice, had done such a thing and made a similar excuse. Democrats and the New York Times would be calling for her head and demanding she be sent to prison for breaking the law. “Accidentally” and “inadvertently” would not absolve her in their minds.

That Mr. Berger felt a need to slip some of the classified documents in his jacket and stuff others in his pants may say something about his true motive. If Mr. Berger was behaving lawfully, why would he not follow lawful procedures, including asking permission to remove notes he took from the classified documents, which included drafts of a sensitive after-action report on the Clinton administration’s handling of al Qaeda terror threats during the December 1999 millennium observance? Archive officials and Mr. Berger’s lawyer say those documents still are missing. Officials said other missing documents identified U.S. airports and seaports vulnerable to terrorist attacks. The FBI searched Mr. Berger’s home and office.

In testimony before the September 11 commission March 24, Mr. Berger said the Clinton administration made combating terrorism an “early priority.” He also claimed the administration did all it could to capture or kill Osama bin Laden and “getting him and his lieutenants became our priority.”

Might those purloined documents have told a different story? Is it a convenience they are missing, like those “missing” documents from Hillary Clinton’s Rose Law Firm that suddenly materialized inside the White House after they had been “inadvertently misplaced” and were unavailable to the inquiring eyes of the Independent Counsel and the grand jury?

Mr. Berger, like the author of some of the missing documents, Richard Clarke, has been highly critical of the Bush administration for the war in Iraq and its battle against terrorism. Mr. Berger might have been looking for documents that, however inadvertently or accidentally, could have put the claims of the Clinton administration into some doubt.

Mr. Berger’s lawyer, Lanny Breuer, acknowledges his client was in “technical violation of Archives procedure, but it is not clear to us this represents a violation of the law.” Only high-priced lawyers make and understand such distinctions. If normal people did this, we’d be doing the perp walk for the cameras.

Mr. Kerry, who has benefited from Mr. Berger’s advice for his presidential campaign, cut any political losses by accepting Mr. Berger’s resignation. Ben Ginsburg, national counsel for the Bush-Cheney ‘04 campaign, understandably wants to make political hay out of this. Mr. Ginsburg says the big question is whether the Kerry team got their hands on any of the information from the documents — and “did they benefit from documents that they should not have had?”

In an understatement, Sen. Trent Lott, Mississippi Republican, said, “Obviously, the timing is not good” for Mr. Kerry. Other Republicans and Democrats, who understand how the political game is played in Washington, were more reserved, or forgiving.

Whether this story has legs will depend on what happens next. If, as in department stores, there was a camera in the secure room of the Archives, and if there are pictures of Mr. Berger emulating actress Winona Ryder in her clothes-stuffing role three years ago, one can imagine the campaign commercial possibilities.

For shoplifting, Miss Ryder got three years probation and 480 hours of community service. There’s a difference between shoplifting and removing highly classified documents and stuffing them in your pants. Accidentally and inadvertently, of course.

Cal Thomas is a nationally syndicated columnist.

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