Posted on 07/14/2005 9:09:34 PM PDT by Lancey Howard
April 14, 2005
It's All About Them
Democrat and former Clinton national security advisor Sandy Berger escaped meaningful punishment for a crime he committed during a wartime Republican administration. How was our nation gifted this debilitating outcome?
On two separate occasions, in September and October 2003, Sandy Berger took a total of five copies of a classified report from the National Archives. The document, an “after-action memo” written by Richard Clarke about the failed plot to blow up the Los Angeles International Airport during December 1999, otherwise known as "the Millennium plot." Berger destroyed three copies by cutting them up with scissors. Berger returned the two copies he kept after being contacted by the Archives, where staff had been monitoring an unusual pattern of activity during Berger’s visits and (the Washington Post reports one source as saying) had “specially coded the papers to more easily tell whether some disappeared” after noting some had previously gone missing.
The Clarke report was one of the items examined by the federal government’s 9/11 Commission, and FOX News heard from one source that that the report was “critical of how the Clinton administration handled Al Qaeda threats to the U.S. homeland and that the missing report made security recommendations that were never implemented.”
Justice department prosecutor Noel L. Hillman (see below) is on tape telling Fox News that “Mr. Berger has admitted in public statements that (the five copies) were different versions, and he admitted today in open court that they were different versions of the same document. There were some differences.” According to Hillman these differences did not consist of notes in the document margins: "Those documents, emphatically, without doubt--I reviewed them myself--don't have notations on them," Mr. Hillman told the Wall Street Journal.
Berger also removed notes he himself wrote during his Archive visits. Under Archive rules, notes taken about classified materials must remain at the archives, but can be used during return visits. Removing notes is apparently not a crime under law, however.
The FBI began investigating Berger in October 2003 and executed search warrants at his home and office in Northwest Washington in January 2004. The Associated Press first reported in July 2004 that the Justice Department was investigating Berger, and the disclosure prompted Berger to step down as a senior foreign policy advisor to the campaign of Democratic presidential candidate John Kerry.
On April 1st 2005 Berger entered a guilty plea to a charge of “unauthorized removal and retention of classified material” - a criminal act classed as a misdemeanor and which carries a maximum penalty of a $100,000 fine and one year in prison followed by a year of supervised release.
Under the plea agreement he struck with the Justice Department, Berger would serve no jail time but pay a $10,000 fine, surrender his security clearance for three years and cooperate with investigators. Sentencing is set for July 8, when U.S. Magistrate Deborah Robinson will have the opportunity to affirm, reject or amend the deal’s terms.
After the plea deal was announced, the NY Post reported that the probe “seems to have shifted to whether Clinton appointees at the Archives tried to cover for Berger. Archives chief John Carlin, a Clinton appointee, was bounced soon after the incident. It's a violation of law to take classified documents, so Archives staffers should have called the FBI when they saw Berger do it — instead, they called Clinton's Mr. Fix-it, lawyer Bruce Lindsey."
The Berger plea bargin deal was announced by Noel Hillman, Chief of the Justice Department’s Public Integrity Section and prosecutor of the Berger case. Hillman joined the Public Integrity Section as Principal Deputy Chief after nine years in the U.S. Attorney's Office for the District of New Jersey. While at the U.S. Attorney's Office, Hillman served as Deputy Chief of the Criminal Division, in the Office's Fraud and Public Protection Divsion, and on detail to the Justice Department's Campaign Financing Task Force.
Mr. Hillman has been on a public relations campaign regarding the Berger plea deal, nearly outdoing Berger’s own lawyer and friends in playing down the extent and importance of Berger’s actions:
- "With his guilty plea today, Mr. Berger acknowledged that as a former high-ranking government official he understood the rules and regulations,"
- "His conduct was intentional and what he did was wrong. He has taken criminal responsibility."
- "There is no evidence that he intended to destroy originals," said Mr. Hillman. "There is no evidence that he did destroy originals. We have objectively and affirmatively confirmed that the contents of all the five documents at issue exist today and were made available to the 9/11 Commission."
- "(Berger) did not have an intent to hide any of the content of the documents" or conceal facts from the commission investigating the Sept. 11, 2001, attacks. (Said by Hillman to U.S. Magistrate Robinson in defense of the plea deal.) "Nothing was lost to the public or the process," Hillman said.
- "It's reasonable to conclude that disposal (cutting up the docments) was a better alternative than sneaking them back (into the archive),"
- “(Berger) may have lied to the press when he suggested he did it by mistake, but lying to the press isn't a federal crime. If he had lied to us, we would have prosecuted”
The Washington Post reported that Hillman defended the plea deal to the Magistrate by saying that Justice Department lawyers concluded Berger took the documents merely for personal convenience - to prepare for his and President Clinton's testimony before the Sept. 11 Commission - and not to hide any embarrassing evidence. Hillman also told the judge that the top Clinton official only had copies of the documents - not the originals - and so he was not charged with the more serious crime of destroying documents.
Consider the omission and red herring hidden in Hillman’s explanation that Berger didn’t cut up originals so he wasn’t charged with “destroying documents.” Hillman embelishes this by explaining that Berder “did not have an intent to hide any of the content of the documents" or conceal facts from the 9/11 commission. “Nothing was lost to the public or the process," repeats Hillman.
Someone listening to Hillman might expect the next day’s headline to read “Berger Cleared of Obstructing Commission.” “No Intent,” a column heading might begin.
Whether or not a copy in the National Archives can be a “document,” the fact remains that Berger was not charged with theft. Instead, the Justice Department apparently picked a minor charge and then “negotiated” the lightest penalty it could get away with – leaving many to wonder if this is just a case of the federal government looking after one of its own.
That’s probably true as far as it goes, but to avoid missing the larger dynamic we might consider whether this could be a case of the Justice Department looking after itself. If so, then this is all about them, not about Sandy Berger.
By letting Berger off lightly Justice preserved a Washington career. Nothing resonates with the Permanent and Powerful like the ability to keep doing what they do forever, and Justice proved its bona fides and made a warm spot for itself in every Beltway heart aspiring to slipstream D.C.'s culture of careers to a golden tomorrow.
The Democrats have proven they know how to reward and destroy (just ask Billy Dale), and their mafiosi reputation may have paid off in spades here. If the Democrats regain the presidency in 2008, Hillman & co. need not fear retaliation and can look forward to their next steps up the ladder. Republicans, the Justice Department knows, will at a mimimum do nothing to harm them until that happy day.
If we think this unlikely, let’s remind ourselves that after the Berger investigation became public, “Hillary announced, without being asked, that Sandy had just helped brief her for a February speech at the annual Munich Conference on Security Policy — sending the adviser a signal that he was still part of the family, even though the grand jury was investigating him.” In Washington, that’s the equivalent of a horse head in the bed. Remarkably, the plea bargain granted Berger by the Justice Department allows him to regain his security clearance by 2008, just in time to support Hillary’s presidential campaign and perhaps accept a post in a victorious Clinton administration.
In the long run, the Justice Department’s durable contribution was to lower the standard of culpable criminality for Washington's careerists. Just as Bill Clinton established that irresponsibility is praiseworthy if it’s good entertainment, Justice gave us “not-crime,” identifyable by non-consequences and soothing spin. Who better than Bill Clinton to invite us to a slapstick future where many a Sandy Berger will surprise and delight? "That's Sandy for you,” said the Emcee-In-Chief. “We were all laughing about it on the way over here."
Posted by Lastango at April 14, 2005 11:33 AM
I read on some thread that Mag. Robinson was appointed in 1988 - she hasn't been promoted since? Magistrate judges are the lowest of the federal judiciary.
In other words, she must have a rep of pissing off politicians. He**, if I were her I send him to prison just because Clinton never appointed me to a higher bench.
I believe the Admiral of the SS Oldsmobile quote is incomplete. I believe his statement was, "There shouldn't be one law for the rich and powerful and one for the masses! But there is, fortunately, and you little people will just have to deal with it!!".
(I don't recall whether I heard that before or after he managed to have his late mother declared a Florida resident so her will would be probated there, though she hadn't been out of MA in about 12 years.)
I made this very point about possible culpability on the part of National Archives personnel in my post regarding this matter on my blog, hotelsierra.blogspot.com.
There's still no news on Perp Berger's sentencing. It maybe time to call the judge...
Berger sentencing postponed til Sept.
They have only themselves to blame. And I am talking about both parties here.
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