Polygraph Berger: Department of Justice Investigation Incomplete

President Bill Clinton’s National Security Advisor Sandy Berger has pleaded guilty to stealing classified documents from the National Archives, but the case is still not over.

In a curt February 16 letter, the Department of Justice (DOJ) dismissed a 60-page report by the Republican staff of the House Committee on Oversight and Government Affairs that demanded Berger be given the polygraph test he agreed to take in order to determine the extent of his theft of materials from the Archives.

“We believe there are no facts that would justify a polygraph of Mr. Berger at this time,” said a letter from Acting Assistant Atty. Gen. Richard Hertling to the committee’s ranking Republican member, Rep. Tom Davis (R.-Va.), who was chairman when the report was being created.

On January 9, Davis’s committee staff released their report titled “Sandy Berger’s Theft of Classified Document: Unanswered Questions.” While preparing to present testimony before the Graham-Goss Commission and to represent President Bill Clinton’s National Security Council staff before the 9/11 Commission, Berger viewed classified material at the National Archives on four different occasions between May 2002 and October 2003.

Berger admitted to stealing classified documents during his second, third and fourth visits. However, the DOJ was interested only in the documents stolen during Berger’s last two visits and not in exploring the possibility that Berger stole other documents in his initial visits to the Archives.

This is what is known about Berger’s visits to the National Archives: On his first visit, May 30, 2002, Berger viewed office files of White House terrorism adviser Richard Clarke. On his second visit, July 18, 2003, Berger removed classified notes from the Archives. On his third visit, Sept. 2, 2003, he removed a highly classified copy of the Millennium Alert After Action Review (MAAAR). The MAAAR was written after the arrest of Ahmed Ressan, who had planned acts of terrorism at Los Angeles International Airport on Dec. 31, 1999. This document had been faxed to the Archives from the Clinton Library in Little Rock, Ark., shortly after Berger’s first visit. On his fourth visit, Oct. 2, 2003, Berger removed classified documents, classified notes and copies of e-mail documents. According to officials at the Archives, these were copies or drafts of the MAAAR that had been faxed from Little Rock. Berger admitted to stealing four of documents during his October 2 visit. After leaving the Archives that day, Berger hid classified documents under a trailer in a construction area near the Archives that he later retrieved. He destroyed three of these documents by cutting them into small pieces and disposing of them in the trash.

Although Berger pleaded guilty to a misdemeanor charge of unauthorized removal and retention of classified documents in 2005, the DOJ did not thoroughly investigate all Berger’s visits to the Archives. The DOJ was concerned only with the items Berger stole in his third and fourth visits, even though he admitted he had taken classified notes during his second visit.

The Inspector General of the National Archives and Records Administration, Paul Brachfeld, wrote in an internal memo that Nancy Kegen Smith, who directs the Archives’ presidential documents staff and supervised Berger’s first two visits, told him she “would never know what if any original documents were missing.”

Therefore, it is unknown whether the classified notes Berger admitted to taking on his July 18 visit are the only items he removed during the first two visits.

Davis said the DOJ was “unacceptably incurious” about Berger’s first and second trips to the Archives.

The report concluded: “There is no basis for concluding that Berger did not remove original documents during his first two visits to the National Archives. It is not knowable whether Berger removed critical documents responsive to 9/11 Commission during those two visits. Given Berger’s admission that he removed his classified notes during the July 18, 2003, visit, he certainly could have removed other classified documents.”

As a part of his plea deal, Berger agreed to undergo a polygraph test, but he was never made to do it.

The Republicans on the House Committee on Oversight and Government Reform are now rightly asking that that test be administered in order to help determine the extent of Berger’s theft of classified documents from the National Archives.

Below are key excerpts from Davis’ report:

On Nov. 19, 2004, Archives IG investigators met with FBI to discuss their investigation. During their meeting, the FBI confirmed to Archives IG investigators that they did not question Berger about his first two visits to the Archives. The Archives IG’s staff asked FBI agents why. The FBI told Brachfeld’s staff that they did not question Berger about his first two visits because the first visit on May 30, 2002, was not relevant to the 9/11 Commission document requests and during the second visit on July 18, 2003, Berger was supervised.…

When asked by committee staff how they could be so sure Berger did not take original documents during his first two visits, [Justice Department investigators John] Dion and [Bruce] Swartz explained that it was difficult to prove a negative. They stated that the Justice Department could not prove that he did not take anything else, but found no evidence that suggested he did. Dion and Swartz also stated that Berger established further credibility in his proffer by disclosing the embarrassing manner in which he stole documents by stashing them in a construction site. Committee staff asked Dion and Swartz whether they ever polygraphed Berger pursuant to paragraph 11 (c) of Berger’s Plea Agreement which requires Berger to “voluntarily submit to a polygraph examination.” They said they did not.…

The lack of interest in Berger’s first two visits is disturbing. The May 30, 2002, document review was on the same subject matter as Berger’s other three visits. Berger spent May 30, 2002, looking at Richard Clarke’s original files. Had Berger seen a “smoking gun” or other document he did not want to be brought to an investigatory panel’s attention, he could have removed it on this visit. The May 2002 research session by Berger was sufficiently critical to the 9/11 Commission’s document requests that on receipt of the official EOP requests, the Archives staff first action was to pull the materials that had been set aside for Berger’s prior visit in May 2002.

The 9/11 Commission reported that at least one memo written by Clarke contained Berger’s handwritten notations. On Dec. 4, 1999, Clarke advised Berger to attack al Qaeda facilities in the week before Jan. 1, 2000. According to the 9/11 Commission, in the margin adjacent to this suggestion, Berger rejected Clarke’s suggestion to hit al Qaeda and wrote “no.”…

According to Phillip Zelikow, the executive director of the 9/11Commission, the commissioners and staff conducted a “lengthy and detailed private interrogation with Mr. Berger.” The interview took place on Jan. 14, 2004.… As Zelikow remembers, they were not aware of the Berger investigation at the time of Berger’s private interview on Jan. 14, 2004. Zelikow wished the Commission had known earlier. While they would not have confronted Berger about the allegations, Zelikow said “they could have reflected on it” and it could have affected the credibility of Berger’s answers.…Zelikow said the Justice Department had told them Berger removed different versions of the Millennium Alert After Action Report and based on discussions the Commission believed this was the scope of the damage. The Justice Department represented to Zelikow that they believed they had accounted for all the documents Berger had stolen. The Department of Justice never advised Zelikow that Berger had access to original, uncopied materials….