Analysis: The odd Berger investigation

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent   |   July 20, 2004 at 2:04 PM

WASHINGTON, July 20 (UPI) -- The ongoing FBI investigation of Clinton national security adviser Samuel "Sandy" Berger for removing classified documents from the National Archives is highly unusual in several respects.

Berger seems to be saying the whole thing is just a product of his professorial absentmindedness. Other than that, there doesn't appear to be any criminal motive for what he did.

And interestingly enough, Berger is not the first Clinton national security adviser to get in hot water on the handling of sensitive matters.

Meanwhile, one former colleague said Tuesday that Berger only took copies of internal critiques on counter-terrorism from the National Archives last summer, apparently inadvertently, while preparing for testimony before the Sept. 11 Commission.

That statement appeared to soften some news accounts of Berger's actions. Initial reports said Berger took documents from the National Archives that were critical of the Clinton administration's efforts against terror and that those documents were now missing.

Sources confirmed that the FBI is investigating the allegations, but any decision on whether to bring charges would be made by the Justice Department.

Removing classified documents is a violation of federal law. Berger also allegedly removed some of the notes he took while researching the documents, which also is forbidden without permission from archives staff. Berger's actions were reported to the FBI by archives staff.

The investigation certainly has some strange characteristics.

Berger is a campaign adviser to Sen. John Kerry of Massachusetts, who should be nominated next week in Boston as the Democratic Party nominee for president. A decision on whether to prosecute Berger probably will be made by career Justice Department officials, but those officials are supervised by appointees of President Bush.

Berger and his lawyer said the former national security adviser has been told he is the "subject" of an investigation, not the "target" -- which normally means investigators have not decided whether they even have enough evidence to bring a charge.

The investigation has been "ongoing" for at least eight months, but Berger has yet to be interviewed by the FBI. A Berger lawyer said FBI agents searched the former national security adviser's home and office safe.

And news of the investigation apparently leaked out only days before the commission issues its final report, expected to be highly critical of both the Clinton and Bush administrations.

Former Clinton aide David Gergen, who worked with Berger in the White House, was interviewed on NBC's "Today" show Tuesday and said of Berger's actions, "I think it's more innocent than it looks."

Gergen said Berger was not attempting to remove anything critical of the Clinton administration. Copies of the purportedly missing documents apparently were widely dispersed, and Berger has said the Sept. 11 Commission received everything it asked for.

The documents reportedly were copies of evaluations by Richard Clarke of the National Security Council on how the Clinton administration handled terror threats to the 2000 millennium celebrations. The sometimes harshly critical evaluations included recommendations that the commission wanted to review.

Gergen defended Berger in the "Today" interview. "I have known Sandy Berger for a long time," he said. "He would never do anything to compromise the security of the United States."

Gergen also said he found it "suspicious" that news of the investigation should surface just as the Sept. 11 Commission is about to release its report.

For his part, Berger has said in a statement that he regretted his "sloppiness" while reviewing thousands of pages of documents at the request of former President Bill Clinton, "but I had no intention of withholding documents from the commission, and to the contrary, to my knowledge, every document requested by the commission from the Clinton administration was produced."

Berger said as soon as he was told 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."

This is not the first time a Clinton-era official has gotten into trouble over the handling of classified material.

Former Director of Central Intelligence John Deutch was investigated in 1998 for using his home computers, configured for unclassified use, to process classified material. A CIA inspector general's report said Deutch's computers had Internet connections, and "all classified information on those computers was at risk of compromise."

The CIA report said it was unknown whether "any of the information was stolen or compromised."

The report said Deutch's suitability for handling classified material should be reviewed immediately, and the investigation blighted Deutch's career.

Berger is not even the first Clinton national security adviser to face allegations he mishandled sensitive matters.

Former Clinton national security adviser Anthony Lake withdrew his name from consideration as director of central intelligence in 1997 after Senate Republicans indicated they wanted an investigation before confirmation.

Democrats said the GOP obstruction was payback for their blocking of officials in Republican administrations, but Lake was facing allegations he did not do enough to keep financial contributors with questionable backgrounds away from the White House.

Lake told a Senate committee he did not know of FBI warnings to his own NSC staff that Chinese agents had targeted some U.S. politicians for political donations. He also said he was unaware of his staff's unsuccessful effort to keep the president from meeting with a contributor who was accused of embezzlement in his native Lebanon.

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(Please send comments to nationaldesk@upi.com.)

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