Posted on 07/20/2004 7:46:40 PM PDT by Brian Mosely
I BELIEVE THAT THIS IS THE RELEVANT STATUTE, 18 U.S.C. 793 (f), governing Berger's behavior:
Sec. 793. - Gathering, transmitting or losing defense information
(f)
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
(1)
through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2)
having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer -
Shall be fined under this title or imprisoned not more than ten years, or both.
(Via reader David Radulski.) I'm no expert in this area of the law (I teach National Security Law, but don't spend much time on these sorts of questions), but this would seem to rule out "inadvertence" as a defense. The legalities of this are the least important part from my perspective -- I'm far more concerned with what the Hell he was thinking -- but this may be useful. And if readers with more expertise think this statute isn't applicable for some reason, please let me know. Berger's statements in this story sound like an admission that he's violated this statute:
"In the course of reviewing over several days thousands of pages of documents on behalf of the Clinton administration in connection with requests by the Sept. 11 commission, I inadvertently took a few documents from the Archives," Berger said.
"When I was informed by the Archives that there were documents missing, I immediately returned everything I had except for a few documents that I apparently had accidentally discarded," he said.
Gross negligence? Sounds like it to me. But again, I'm not an expert. In fact, this almost makes me wonder why he hasn't been charged -- though the decision to charge someone, even someone admittedly guilty, is always a matter of discretion, and criminal charges against a former National Security Adviser are a rather big deal. It's easy to understand why the Justice Department might be reluctant to bring such charges even if it's satisfied that all the elements of the crime are present.
He'll get a slap on the wrist. He's a Democrat.
BINGO!
A slamdunk IMHO. Certainly "inadvertently" removing and losing documents related to the national defense qualifies as "gross negligence."
Indict his a** and prosecute! If Martha Stewart is going to jail for five months, why is this a**hole still walking around free? I am sick of Democrats flaunting the law. Are we a nation of laws or not?
Negligence is a pretty low standard in the law. Gross negligence is much more difficult. I see the statute, as quoted here, says nothing about knowingly or wilfully. Troublesome. He may skate if this is an accurate representation of the statutory language.
Actually I don't care if he goes free as long as he is able to spill the beans on a larger fish in exchange.
Martha, by the way, is a Democrat.
Also, the dems look silly with this timing so-called issue. If Republicans were going to leak this, why do it right before the convention? This story will die when the convention starts and resume later only if new news crops up. It would have been better to leak this a month ago.
Right now the FBI is less concerned with the charges than finding out where the missing documents are and to whom the information went to. Begin with Berger end with Kerry! Charges will follow, just smell the bacon.
From the posted statute......
having knowledge that the same has been illegally removed from its proper place of custody........
It seems that the "knowingly" issue is covered.
18 USC Sec 641 - "Whoever ... purloins ... without authoirty or disposes of any record, ... or thing of value ... of the United States or of any department or agency tehreof ... Shall be fined under this title or imprisoned not more than 10 years, or both; but if the value of such property does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both"
He better hurry up before a figure about to be fingered decides it's time for the Dum-Burgler to sleep with the fishes.
I can't help thinking that when the documents come into his possession in a high security archival environment, taking them out and then losing them would meet the standard of gross negligence.
I can't help thinking that when the documents come into his possession in a high security archival environment, taking them out and then losing them would meet the standard of gross negligence.
I can't help thinking that when the documents come into his possession in a high security archival environment, taking them out and then losing them would meet the standard of gross negligence.
Losing defense information? What about unauthorized removal and destruction?
Who among us believes he really "lost" the documents?
Well, according to this blogger, that may be the case:
http://wizbangblog.com/archives/003067.php
Noted author Steve Graham has the low down on the scandal that isn't a scandal yet.
I have a reader who is involved with the government's efforts to fight terror, and he has connections who tell him the big suspicion is that Berger took things he thought would help Kerry in the Presidential campaign. Also, the grapevine says not all of the documents taken were copies. Furthermore, I am told that an FBI agent described Berger as "a total asshole" who is not as cooperative as he claims.
Also, I am told that an effort is being made--either by the press or the Kerry/Berger camp; it's not very clear--to mount a sound bite campaign to put the matter to rest. The idea is to make it look like sloppiness, because the truth is that it was deliberate. And I am told that this scandal is much more serious than we have heard so far.
...It's a very bad thing if a former NSA and a Senator conspired to violate our national security in order to win an election. Much, much worse than wiretapping DNC headquarters, where no information of any importance has ever been known to exist. In other words, much, much worse than Watergate, in terms of the danger it poses to the U.S.
Maybe this is it - the one - the Watergate for the new millennium? If so it's going to be broken by blogs, and a few smart blog savvy journalists. Who is standing in our way?
Update: CNN reports the following:
In a statement issued late Monday, Berger said the removal of those papers was unintentional. But law enforcement sources told CNN that some of the papers he is said to have taken from the National Archives were stuffed into his socks as well as other parts of his clothing.Which is another source to the Fox News story Stephen Green reported last night about hiding documents in his socks. When you have to haul out spinmeister Lanny Davis, you know trouble is brewing...
Former Clinton aide Lanny Davis challenged any unnamed official who accuses Berger of stuffing documents into his socks to come forward and level that charge publicly.After reading that it's obvious - he's guilty as sin..."I suggest that person is lying," he said. "And if that person has the guts, let's see who it is who made the comment that Sandy Berger stuffed something into his socks."
Davis called Berger "a person of impeccable honesty and integrity."
"He spent nights and 24-hour time periods before the millennium doing, I think, a critical job in thwarting a terrorist attack between 1999 and 2000, New Year's Eve," Davis told CNN's "American Morning."
"What we're told ... [is] he took copies of those memos inadvertently in his own notes. There's absolutely no basis for suggesting there is any national security issues here or harm done here."
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