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Thursday, November 03, 2005

The Berger/Libby disparity 

Via Glenn, a good question:
If stealing and destroying secret documents, stuffing them into your pants and then lying about it isn't a crime worthy of jail time, why is having a different recollection of events than Tim Russert?
This is a good question, even if I think that the writer rather willfully downplays the moral case against Libby later in the editorial.

The question, I think, is backwards: isn't the real mystery why Sandy Berger got off with a small fine and no jail time? Since a full-blown investigation and conviction of Sandy Berger would have been strong mojo in an election year, one has to assume that Berger had powerful leverage of some sort in the plea negotiations. (Speculation alert) Berger probably persuaded the Justice Department that it wanted a trial even less than he did, probably because he would have introduced evidence or adduced testimony that would damage either or both of the United States or the Bush administration.

17 Comments:

By Blogger Cardinalpark, at Thu Nov 03, 08:38:00 AM:

Reflects the difference between an investigatyion handled by an independent prosecutor and the Justice Department...that Berger got off is ludicrous. I do wonder what he was so focused on hiding...  

By Anonymous Anonymous, at Thu Nov 03, 10:30:00 AM:

Maybe because that isn't really what happened.

Documents weren't stolen or stuffed in pants.

Here is what really happened:

He printed out copies of documents, which he folded up and put in his jacket pocket.

He then cut up these photocopies to destroy them.  

By Anonymous Anonymous, at Thu Nov 03, 10:46:00 AM:

So the above claims that no documents are missing at all?

Any link to demonstrate that?

Wasn't there documents found in his socks?

This&That  

By Anonymous Anonymous, at Thu Nov 03, 10:56:00 AM:

Hmmm, to quote wikipedia entry:
_____________________________
On July 19, 2004, it was revealed that the U.S. Justice Department was investigating Berger for taking as many as fifty classified documents, in October 2003, from a National Archives reading room prior to testifying before the 9/11 Commission. The documents were commissioned from Richard Clarke about the Clinton administration's handling of millennium terror threats. When initially questioned, Berger claimed that the removal of top-secret documents in his attache-case and handwritten notes in his pants and jacket pockets was accidental. He would later, in a guilty plea, admit to deliberately removing materials. Berger left the John Kerry campaign shortly after the incident became public. Some suggested that Berger's removal of the documents constituted theft and moreover had serious national security implications, while others claimed that the documents were taken, only drafts and all were flattering to Clinton and Berger (relating to the failed 2000 millennium attack plots). Noel Hillman, chief of the Justice Department's public integrity section, asserted that the documents Berger removed were only copies, and government sources have said that no original material was taken. [1]

On April 1, 2005, in connection with the documents investigation, Berger pled guilty to a misdemeanor charge of unauthorized removal and retention of classified material. Under a plea agreement, U.S. attorneys recommended a fine of $10,000 and a loss of security clearance for three years. However, on September 8, U.S. Magistrate Judge Deborah Robinson increased the fine to $50,000 at Berger's sentencing. Robinson stated, "The court finds the fine [recommended by government prosecutors] is inadequate because it doesn't reflect the seriousness of the offense."
___________________________-

So only ONE person (Noel Hillman) claims (with no evidence presented in a court of law etc.) that only copies were taken---not copies made and orginals left.

So the orginal CNN story has Sandy removing (not making) 5 copies of the doc's, destroying three (what was written in the margins of those copies?) & then lying about it:

______________________--

link: http://www.cnn.com/2005/LAW/04/01/berger.plea/index.html?section=cnn_latest

An associate of Berger told CNN the former national security adviser admitted to the Justice Department he originally took five copies of an after-action report -- one during his September 2003 visit to the Archives and four during his October 2003 trip.

When he returned to his office and compared the copies he had, he believed several were basically the same, the associate said.

He admitted to officials that he then used scissors to cut up three copies that night while at his office, they said. At first he had said he had either misplaced or unintentionally thrown them away.

When Archives officials contacted him after they realized documents were missing, he told them about the two copies he had and returned them, along with the handwritten notes he had taken, they said. He did not say anything about the three copies he had destroyed.

____________________________


So what was written on those three copies that are forever missing?

Not to worry, it is a Lefty who took 'em so all is A-OK!

Bah.

This&That  

By Anonymous Anonymous, at Thu Nov 03, 11:39:00 AM:

Anonymous at 10:30 clearly has no clue about handling classified documents. Even his watered-down description, for which there is no evidence, is still a serious crime. First, copies of classified documents are still classified, and there is no reduction in severity for mishandling them. Second, he is mistaken if he believes that copier machines are sitting around for public use in an area where there's distribution of classified documents. These things are obvious to anyone who has ever had a clearance for handling classified materials (and yes, I do). I only deal with scientific information, not intelligence related to national security, and anyone without Berger's political sway would be punished severely for doing what he did with much less important documents.

It amazes me that people so easily jump to his defense when everyone who knows anything about protecting classified material was outraged about his theft/loss/unauthorized destruction of classified material (each one of those is very serious). Stop being a lap-dog for a specific party and think about what's good for the country for a change.  

By Anonymous Anonymous, at Thu Nov 03, 11:43:00 AM:

And let's not forget that he was removing materials on more than one occassion. The archives employees essentially set up a sting to have irrefutable evidence to catch him because they had observed him doing this on several occassions. Can you imagine the pressure on these public employees to have to make these charges against a big-shot like Berger? The man should be sitting in jail, and his former colleagues should not be making excuses and joking about the inexcusable.  

By Anonymous PantsB, at Thu Nov 03, 11:51:00 AM:

Ummm sorry but no. It is not what happened. From the Wall Street Journal:
>>>>>>>>>
Officials looking into the removal of classified documents from the National Archives by former Clinton National Security Adviser Samuel Berger say no original materials are missing and nothing Mr. Berger reviewed was withheld from the commission investigating the Sept. 11, 2001, terror attacks.
Several prominent Republicans, including House Speaker Dennis Hastert and House Majority Leader Tom DeLay, have voiced suspicion that when Mr. Berger was preparing materials for the 9/11 Commission on the Clinton administration's antiterror actions, he may have removed documents that were potentially damaging to the former president's record.

The conclusion by archives officials and others would seem to lay to rest the issue of whether any information was permanently destroyed or withheld from the commission.

Archives spokeswoman Susan Cooper said officials there "are confident that there aren't any original documents missing in relation to this case." She said in most cases, Mr. Berger was given photocopies to review, and that in any event officials have accounted for all originals to which he had access.
...
Daniel Marcus, general counsel of the 9/11 Commission, said the panel had been assured twice by the Justice Department that no originals were missing and that all of the material Mr. Berger had access to had been turned over to the commission. "We are told that the Justice Department is satisfied that we've seen everything that the archives saw," and "nothing was missing," he said.
>>>>>>>>>>>>>>>

In other words, the argument is based on false premises. Berger didn't remove any or destroy any original documents.

He did remove copies and he plead guilty to that misdemeanor - and was fined $50,000 and given community service. What he was guilty of was not close to perjury or obstruction, let alone outing a covert agent?

Then again, the claim that the Libby charge is based on having "a different recollection of events than Tim Russert" is so ridiculous as to make the entire point not worthy of comment in the first place.  

By Anonymous Anonymous, at Thu Nov 03, 12:05:00 PM:

What is it so hard for you to understand about this? Copies and originals of classified documents are EQUIVALENT in terms of classification. You are not allowed to steal and destroy (or lose) classified documents simply because they are copies. And he repeatedly removed copies of the same specific document. Please explain that.

And you continue to distort this. Just because he was charged with a misdemeanor, as you so eloquently noted in bold, does not mean that he shouldn't have and couldn't have been charged with more serious crimes. The Justice Dept. didn't push this like it could have, which was part of TigerHawk's original post.

You are running around in circles defending something that was very serious. We don't know why Berger got off so light when he could have been seriously prosecuted. Was it the threat of Berger bringing out more information that Justice didn't want, as is Tigerhawk's question? Is Berger simply too well-connected for anyone in Washington to want to prosecute him? Maybe.

Instead of comparing this case to Libby's (and I do hope he does some time because he appears to have committed perjury), how about a hypothetical? How would you, the press, and the Fringe Left be acting if Condi Rice, who had an identical position as an NSA, had stolen classified documents from the Archives about terrorism or even about the pre-Iraq war intelligence?

Yeah, I'm sure your reaction would be the same.  

By Anonymous Anonymous, at Thu Nov 03, 12:13:00 PM:

The reason that they are 'copies' is that everyone at the meeting got the same handout. Then all were collected and stored together.

It isn't that _he_ copied them, it is that the printed text on all of them is identical.

Only the marginalia would be different. And unique. And classified. And damning.  

By Anonymous Anonymous, at Thu Nov 03, 12:21:00 PM:

Well, if we trust the Wall Street Journal and Hillman's word, then the idea of Clinton copy, Berger copy, etc., is wrong. They reported that the copies in question were direct printouts from an Archives hard disk, so that there couldn't have been the mysterious hand-written notes.

So, if we take their word for it that there were no hand-written notes, we don't know why Berger removed up to 5 copies of the same document. Did he think that he was removing all of their copies over time? I don't know.

However, this is still irrelevant to the actual crimes committed. People DO serve serious time for mishandling classified information much less important than this.

Berger intentionally stole the material, lied about it initially, and claims to have destroyed (with scissors, which, by the way, is NOT an approved method of destroying classified documents - how clueless was this guy?) and misplaced some of them. That is a LOT of trouble unless you are politically untouchable.  

By Anonymous Anonymous, at Thu Nov 03, 12:22:00 PM:

This is "Anonymous at 10:30".

And I used to work in a classified environment.

And yes, there ARE copy machines all over the place. But when they
copy they put a "CLASSIFIED" notation on them.

But I guess every classified place is different.  

By Anonymous Anonymous, at Thu Nov 03, 12:24:00 PM:

Who has served serious time for mishandling classified information less important than this?

When I mishandled classified documents, and admitted to it on a polygraph, I didn't even get a slap on the wrist.  

By Anonymous Anonymous, at Thu Nov 03, 12:52:00 PM:

Removal of classified information from its secure location by "gross negligence" is a felony that is punishable by up to a 10 year prison sentence. I would guess that intentional theft and lying about it may have harsher penalties. He removed documents on multiple occassions, so I don't know if he could face a separate felony count for each document or maybe more likely for each separate occassion. Add in the crimes for unauthorized destruction of classified materials and his negligent loss of others, and he could have faced a LOT of prison time.  

By Anonymous Anonymous, at Thu Nov 03, 04:05:00 PM:

None of this speculation is correct. Someone had spilled mustard on some of the documents and Berger thought they were food and thus swiped them.  

By Anonymous AMR, at Fri Nov 04, 12:35:00 AM:

Interesting comments, but remember that the defense might just have wanted the removed documents given as evidence. Since Clinton nor Bush would have wanted them to become public, maybe a plea bargan was struck. It has happened before.  

By Blogger Ghost Dansing, at Fri Nov 04, 04:51:00 AM:

I doubt if Berger's episode rises to the occasion of Scooter's, should he be convicted. Sandy was taking stupid pills that day. Also, I find it fascinating that not a word is said about the content of these after action reports. It would seem, first, that if Berger was trying to "hide" something, he should have known that he was actually flagging it by stealing it, because it was surely inventoried, and the loss would be detected. Secondly, to think that archivians don't keep copies, at least electronically or on microfiche would be very naive for a career government servant. Trying to "hide" something by stealing it from the archive would be a foolish gesture. And yet, what was the mysterious content? Certainly its nature would have been leaked, if not the specifics of its content should it have been dishy or embarrassing.

Of course, the Scooter thing is pointing to a White House led propaganda campaign to persuade Americans that the need for war in Iraq was imminent based on the WMD threat.

Kinda.. "apples and oranges". Scooter is going to do whatever he can to drag out his case through the end of Dubya's administration. He's already waived his right to a speedy trial. But there has already been a lot of interesting things come out of the Grand Jury that produced the indictment, and more high-level officials will be asked to testify in the obstruction/false witness case.

Scooter's case has the potential to lead to Presidential impeachment.. and not over sexual indiscretion in the Oval Office, but malfeasance and incompetence that borders on treason.  

By Anonymous PantsB, at Fri Nov 04, 11:05:00 AM:

In what bizarro world is removing classified information, but not sharing it with others, worse than seeking classified information and then sharing it with people who are not cleared to have that information in order to discredit a political opponent? Is it the same one where lying publically is worse than lying publically, through the WH spokesman, to the FBI under oath and to a grand jury under oath?  

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