Not convinced that Sandy Berger acted alone in the theft and destruction of top secret documents while on the 9-11 Commission, Rep. Tom Davis (R.-Va.) and seventeen other Republican House members recently called on the Department of Justice to administer a polygraph examination to the one time Clinton National Security Advisor asking him about his admittedly illegal behavior at the National Archives in 2002 and ’03.
But George W. Bush’s Justice Department as well as his own White House have given Davis and the other lawmakers the cold shoulder on administering a lie detector test to Berger, who pled guilty to removing highly classified documents from the National Archives relating to the Clinton Administration’s record on terrorism.
In responding to a January 22 letter from Davis and the Republican lawmakers to Attorney General Alberto Gonzales requesting the polygraph test for Berger, Acting Assistant Attorney General Richard Hertling cites a separate letter to House Committee on Government Reform Chairman Henry Waxman (D.-Cal.) stating that "we believe there are no facts that would justify a polygraph of Mr. Berger at this time." (Hertling’s letters to Waxman and to Davis and the GOP congressmen were both dated February 16).
At this morning’s gaggle (early morning briefing) for White House reporters, I asked Acting Press Secretary Tony Fratto if the President supports Davis’s position that Berger did far more harm to national security than initially realized when he made his guilty plea and should therefore be given a lie detector test.
"I don’t think that question has been put to the President so I don’t know his views on it," Fratto told me, "and it’s really a question you want to leave with the Attorney General at this point on how to deal with it."
"I’m not very familiar with it. In fact, I could say before your comments, I don’t think I was familiar at all with Rep. Davis’s comments on that. So I don’t think I’m in a position to comment on it."
Later, I asked Davis spokesman David Marin what he thought of Fratto’s answer. “If the White House is not aware of it, it ought to be. This has been playing out a long time.”
In their letter to Gonzales, Davis and his Republican colleagues cited Paragraph 11 of Berger’s Plea Agreement, which stated: "The defendant agrees that, upon request by the United States, he will voluntarily submit to polygraph examinations to be conducted by a polygraph examiner of the United States’ choice."
But, as the letter from Davis and Company goes on to point out, "two senior Justice Department officials involved in the prosecution, Chief of the Counterespionage Section John Dion and Deputy Assistant Attorney General for the Criminal Division Bruce Swartz, told [Government Operations] Committee staff Mr. Berger was never polygraphed."
As to why Berger should now submit to a lie detector test, the Republican lawmakers note that while he was prosecuted for taking documents he admitted to taking, "questions remain about what other documents he removed."
Specifically, Davis and his colleagues cite that when Berger visited the National Archives on four occasions in ’02 and ’03, he reviewed highly classified documents — "some of which were so highly classified Mr. Berger’s own deputy did not have the requisite security clearances to see" in preparation for the 9-11 Commission inquiry into the terrorist attacks of that date.
"Mr. Berger," they wrote, "was provided original materials for which there were no copies or inventory. Mr. Berger admitted taking documents on three of these visits. The Archives official who provided the materials to Mr. Berger said she would ‘never know what if any original documents were missing."
These concerns were written into the minority staff report of the Government Operations Committee ("Sandy Berger’s Theft of Classified Documents: Unanswered Questions," January 9, 2006) and cited in the letter by Davis and the other GOP lawmakers to Gonzales requesting that a lie detector test be administered to Berger.
In refusing the request in both their response to the Republican House members and in their separate four-page letter to Waxman, Bush’s Justice Department, "gave us the finger, basically," Davis told Fox News’s David Asman.
In Asman’s program "Socks, Scissors, Paper: The Sandy Berger Caper," Davis charged that there is substantial reason to believe Berger did not act alone in the thefts of documents, that phone calls the former Clinton White House staffer made during the review of documents raise questions that he was coordinating the theft with others.
In response to Fratto’s comments this morning, I sent the White House press office copies of the letter from the congressmen to Gonzales and the replies from Hertling to Davis and to Waxman.
Clearly, this is an issue that won’t go away.