Prediction: Sandy Berger “crime” a major non-issue

Yesterday I thought Samuel (Sandy) Berger was headed to jail. I thought he surreptitiously stuffed secret documents into his pants and that maybe he was trying to hide embarrassing information on how Clinton dealt with the millennium terrorism threat. I thought this was a very serious and ugly story.

It may still be an ugly story, but I now believe it’s completely unserious, and maybe just a dumb mistake. Most ridiculous are the frenzied charges that Berger was spying for Kerry. When even James Taranto says that Josh Marshall is most likely right in calling such charges absurd, we know there’s probably not much to it. Instead, Taranto subscribes to Sullivan’s theory:

My best bet is that Berger was engaging in advance damage control–saving the drafts to help concoct a better defense of his tenure. If so, it’s classic Clinton era sleaze–not exactly terrible but cheesy subordination of national security for partisan political advantage.

Call it dumb, selfish, stupid, wrong, inexcusable, and I’ll agree. Call it treason or a crime that merits imprisonment, and I’ll disagree. And I believe the Justice Department will not indict Berger, nor should they.

My favorite post on this kerfuffle comes from the Center for American Progress. Allow me to bore you with a healthy chunk, because it’s very smart.

Attack and Distract

One day before the bipartisan 9/11 Commission is scheduled to release its final report, Bush administration allies on Capitol Hill have put their partisan spin machine into high-gear. Despite overwhelming evidence that President Bush underfunded counter-terrorism, ignored repeated memos warning of an imminent attack by Osama bin Laden, and took one of the longest vacations in presidential history while the pre-9/11 security threat boiled, Republicans are seeking to blame 9/11 on the Clinton administration even before the Commission’s report has been published. Their current target: former National Security Adviser Sandy Berger, who in October 2003 acknowledged inadvertently losing two documents from the National Archives. House Speaker Dennis Hastert, House Majority Leader Tom DeLay and Senate Majority Leader Bill Frist claimed Berger was trying to deceive the 9/11 Commission. They failed to mention the Commission refuted that charge, and that even the Bush Justice Department admits the incident is so innocuous, that CBS News reports “law enforcement sources say they don’t expect any criminal charges will be filed.”

REPUBLICANS ADMIT THE TIMING SMELLS: CBS News reported last night that even Republicans “say the timing of the investigation’s disclosure smells like politics, leaked to the press just two days before the 9/11 Commission report comes out.” Republican strategist Eddie Mahe said, “somebody is manipulating the process.” Why? Because, as the WP reports, the final report by the commission concludes Iraq “never established operational ties” with al Qaeda. In other words, the Commission is about to formally conclude that one of the two major justifications the administration gave for war in Iraq was a fraud. With the WMD justification also proving false, the administration is desperate to distract from polls that show a majority of Americans say the war was a mistake. Even more troubling for the White House, almost half the public now says the White House “deliberately misled” America about Iraq. It was this fear that the Commission would embarrass the Bush administration that led the White House to oppose its creation. And it is no surprise that yesterday Commission Chairman Tom Kean admitted that some wanted the 9/11 Commission to fail.

MOTIVE ACCUSATIONS JUST PLAIN SILLY: Reuters reports “Republicans accused Berger of taking the documents so they could be used by the Kerry campaign at a news conference on port security.” Said Sen. Rick Santorum (R-PA): “Right after the documents were taken, John Kerry held a photo op and attacked the president on port security. The documents that were taken may have been utilized for that press conference.” Although the timing in this fable may be accurate, one thing is clear: neither Kerry nor any citizen in America needs secret documents from the National Archives to know the Bush administration and Republicans in Congress have dangerously underfunded seaport and airport security. As American Progress fellow PJ Crowley notes, while the Coast Guard has said it needs $7.5 billion for key port security upgrades, the White House has requested just $45 million this year. Similarly, as the Century Foundation reports, while “the Transportation Security Administration estimates there is a 35% to 65% chance that terrorists are planning to place a bomb in the cargo of a U.S. passenger plane” the administration has only provided funding to make sure that 5% of air cargo is screened.

SAXBY CHAMBLISS – A RIGHT-WING SMEAR ARTIST: As the Dallas Morning News reports, the Berger affair “took on a slightly comic note” as Sen. Saxby Chambliss (R-GA) claimed without any proof that Berger “put some papers in his trousers” (Berger categorically denies this charge). Chambliss, of course, has made his career dishonestly smearing decorated war heroes who lost limbs in Vietnam, even while he refused to explain how he avoided all military service during the war. In his 2002 race against triple amputee veteran Max Cleland, Chambliss “ran a TV ad picturing Cleland with Saddam Hussein and Osama bin Laden.” At the same time the ads were running, Chambliss refused to explain how he received three draft deferments – including two for a “bum knee” even though he still found a way to play baseball in college.

WHERE IS THE LEAK OUTRAGE?: CBS News reports the controversy “was triggered by a carefully orchestrated leak” about the FBI’s investigation of the matter. Yet, top administration officials and Republicans who have previously expressed outrage about leaks were nowhere to be found. There was no statement of outrage or call for an investigation from Attorney General John Ashcroft who in 2001 said leaks “do substantial damage to the security interests of the nation.” Similarly, there was nothing from the Chambliss, who one year ago said “leaks have always been a problem and continue to be a problem.” And it was all quiet at the Pentagon, despite Defense Secretary Donald Rumsfeld stating last year that leaks are “disgraceful, they’re unprofessional, they’re dangerous.”

NO SIMILAR OUTRAGE ABOUT BUSH RECORDS BEING DESTROYED: Even as Rush Limbaugh and the GOP’s congressional leadership insinuate without proof that Berger was deliberately trying to destroy records, they have made little mention about last week’s disclosure that President Bush’s key military draft records were destroyed by Pentagon officials. The documents in question would have proven whether the President was lying about whether he fulfilled his military service that allowed him to avoid going to Vietnam. The destruction of the documents has forced the Associated Press to sue for copies of them, which are legally required to exist in the Texas archives. Despite promises to release all documents, the president has refused to release the Texas copies.

The timing certainly does smell. That doesn’t mean Berger didn’t do a bad, dumb thing. But there are two stories here: Berger’s dumbass behavior, and the leak — an infamous tool of the Bush dirty tricks arsenal.This administration has gone ballistic over leaks in the past, at least when the leak made them look bad. Why the silence this time?

The Discussion: 12 Comments

Unfortunately, what Berger did was not merely bad and dumb, it was criminal. Instapundit has a list of the relevant statutes. Should he go to jail??? Well…people have gone to jail for violations of security that were a lot less serious. The “oops, it was a mistake” defense doesn’t hold up. He appears to be deliberatly lying for some reason. I cannot believe it was simply a matter of covering up some embarassing info to give himself a better chance at a high position with a potential Kerry administration. Speculation is – of course – running wild. I will wait for the rest of the story to play out before condemning the man.

July 21, 2004 @ 10:27 pm | Comment

I am amazed that you think that this is not serious. The former head of national security intentionally purloined highly classified documents from a secure government facility on more than one occassion for a political purpose. Now he’s lying his ass off about it.

It’s scandalous.

Jail time is absolutely appropriate.

Then, if that’s not enough, he apparently kept the fact that he was the subject of a criminal investigation from John Kerry, again for his own benefit, insuring that disclosure would result in maximum political embarrassment.

Clearly Sandy Berger puts Sandy Berger’s interests before his country’s or his candidate’s.

Joe Wilson and Sandy Berger, quite a team of foreign policy advisors your guy’s got there.

July 21, 2004 @ 11:34 pm | Comment

And one more point — accepting Berger’s explanation as true (which I don’t) after he took documents subject to the nation’s highest security classification home, he friggin lost them.

Where are they now? In whose hands? Who has seen them? We’ll never know.

July 21, 2004 @ 11:59 pm | Comment

What Conrad said. However, Virginia Postrel is putting up a (sorta) defense of Berger….

I’m an odd defender of Berger, who used to make me wince at his incompetence when he was national security adviser. He’s a good argument against the return of the not-very-deep Democratic foreign policy team–but not because of purloined notes. Partisans (and reporters) make fools of themselves, and their causes, when they turn this sort of story into a Very Big Deal. Argue the issues, folks.

July 22, 2004 @ 5:38 am | Comment

Jim, what InstaPuppy has to say is not gospel to me. His silly comments on Berger are challenged, with a lot of humor, here.

Guys, it is “serious” — but not very. The FBI sees it strictly as back-burner, Sully sees it as sleazy but unserious, Taranto agrees, Postrel agrees, and I agree. It will ruin Berger’s career, he’ll probably lose his security clearance and for two or three days it’ll overshadow campaign news. Period.

The only ones who are moaning about how this affects national security are right-wing bloggers and some to-the-right pundits. The FBI doesn’t think so. After all, these were only copies. The originals are safe and sound in the archives. I have said from the instant this story broke that it was insane, tragic, wrong, unacceptable, inexcusable and career-wrecking. My sole point in this post, however, is that it will basically go away; Berger will not go to prison, there won’t be any damage to Kerry and it will be forgotten in a few weeks. At first I thought Berger was going to be sent to jail; now I don’t.

Now, maybe he should go to jail, and maybe what he did threatens national security. I don’t know. I am simply saying what I predict, based on the reactions I’m reading in Washington.

I’m also ready to predict that the Valerie Plame incident will blow away without criminal proceedings. But it’s much harder for me to make that prediction, because unlike the Berger case, the government isn’t leaking information about the probe left and right. The amount of “facts” we now know about the Berger case is mind-boggling and was clearly orchestrated. The whole thing is a distraction. Draw whatever profound inferences you will, but it won’t matter a dime come election time.

July 22, 2004 @ 10:23 am | Comment

What difference does it make if he only took copies (which, BTW, is far from clear). The documents were friggin classified. That means no one is supporsed to see them unless they have a security clearance. Berger took them and then — as he claims — lost them. They ought to throw the book at him.

Look, I don’t think this should have much impact on Kerry. He apparently didn’t know about it. But Berger . . . he should be prosecuted.

July 22, 2004 @ 9:44 pm | Comment

You know Conrad, maybe he should be prosecuted. I am simply saying that based on the reactions I am seeing, on the left and the right, this is going to fizzle out into a big nothing. No prosecution, no jail time. I am not saying that’s what is right, just that’s that what will happen. Life is unfair. C’est la vie.

July 22, 2004 @ 9:52 pm | Comment

Richard, I referenced Instapundit solely for the relevant statutes not for his opinion on Berger. I do not remember Berger in as negative light as Virginia does – but will admit she may have had much more opportunity to get to know him.

I would not be too quick to predict this will just fade away. The same prosecutor that got jail time for Martha Stewart is working this case. How long before he is atacked as being partisan??? The Plame investigationis far from over. My own observation in these things is that the press reports only when there is something for everyone to get all excited about. Then it dies down until a fresh set of revelations.

Personally, I believe the timing benefits the Clinton-sabotaging-Kerry conspiracy more than the Bush-did-it conspiracy. I have seen nothing so far that Berger/Clinton would not have known. They could have released this thenselves. Kerry being kept in the dark on this is absolutely incredible.

July 23, 2004 @ 8:59 am | Comment

Jim, I’m just making a prediction. We’ll see, but the FBI is definitely not going at this as a major breach of security. We can speculate ad infinitum about who leaked it; both Dems and Repubs have been known to do this kind of thing. My guess is the GOP, but it’s just a guess.

The fact that Berger didn’t tell Kerry is the most disgraceful aspect of this scandal. Despite what Virginia may say, I always respected Berger. His silence amounts to stabbing Kerry in the back a week before the convention. Luckily the story has played itself out for now. Your observations about the media are absolutely right. All it would take to revive the story again is another leak of some scandalous new detail.

July 23, 2004 @ 9:07 am | Comment

Richard, the one point in this whole story that keeps sticking in my mind is Kerry not knowing. With all the people – Dem and Rep – claiming to have known about this all along, how could Kerry possibly not have known? If he knew, why bring Berger on board? Even granting that at least half of the people claiming prior knowledge are BSing just to look informed – this had to be the most well known “secret” in Washington.

As a side – and somewhat related – point. It will be interesting to see what comes of the Shelby investigation. He hasn’t admitted leaking the info so it isn’t a direct comparison. But just how hard this is pushed vis a vis the Berger story should prove interesting.

July 26, 2004 @ 10:18 am | Comment

Jim, which Dems and Repubs knew all along, and how do you know they knew? If Kerry knew, he would have distanced himself immediately. As soon as he did know, that’s exactly what he did. The only ones saying they had prior knowledge that I know of were employees of the National Archives and people in the Justice Department and the White House. Do you think they share all they know with John Kerry?? You are the first person I’ve seen assert that this is a “well-known secret.” What’s your source?

Now, let’s look at how minor this really is by comparing it to something that really matters, and yet doesn’t create a big media hoopla like Berger’s case is doing. Two prominent members of the Bush team played key roles in the Iran-Contral affair . Unlike the Berger case, where all we know at this point is speculation, the criminality of these two men (Abrahms and negreponte) is an established fact. Yet Bush appoints them to high office knowing they played criminal roles and escaped indictment only through his father’s pardons. And that seems to be okay. And yet people are coming down on Kerry because of an alleged misdeed by Berger, for which Kerry immediately dismissed him. If you want to go after Kerry, can’t you find something more substantive? This is BS — none of the pundits I read are saying this was well-known throughout Washington. Kerry is busy running a presidential campaign. He can’t have his eyes and ears everywhere. What are you blaming him for? What do you think he did wrong? What are your sources, and if it’s so dire how come I’m not hearing any of this from the main media, even from conservatives?

Sorry, but I have no patience for people trying to find something, anything that will will validate their preconceived notion of Kerry’s incompetency. If you’re going to do it, be prepared to back it up with checkable data.

July 26, 2004 @ 10:32 am | Comment

While I was browsing your web site, I began to wonder if you had ever bevcome aware of the Personnel Security Standards Psychological Questionnaire (PSSPQ). The PSSPQ is a short psychological type ‘test’ that was developed to accurately predict success/failure to be eventually granted high-level (i.e., TS-SCI) security clearance status. The PSSPQ was constructed by a senior psychologist who, several years ago retired from federal service when being the Chief Research Psychologist in the USA’s then largest intelligence agency. Information regarding the PSSPQ and directions for how to make arrangements to ‘take’ the test can be found at:

December 18, 2004 @ 8:54 pm | Comment

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