Document-Theft Probe Is Criticized

By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, January 10, 2007

The Justice Department and the National Archives improperly assured the Sept. 11 commission that its members had access to all relevant materials about the Clinton administration's terrorism policies, without knowing if original, uncopied documents had been removed from the archives by former national security adviser Samuel R. "Sandy" Berger, a Republican congressional report said yesterday.

The report, issued by Rep. Thomas M. Davis III (R-Va.), accused both agencies of inadequately investigating the theft Berger admitted had occurred on two occasions in 2003. It quoted two Archives officials as saying that they had no way of knowing whether Berger took other documents from the files during two earlier visits.

Davis is the former chairman of the House Committee on Oversight and Government Reform. He issued the report after Republican staff members conducted interviews with Archives and Justice Department officials and gained access to unredacted material from a probe by the National Archives inspector general.

His report includes new details of what Berger did, and how the Archives staff, the Justice Department and the FBI reacted to the discovery of missing documents. It depicts Berger as aggressively insisting during his visits to the Archives that he be left alone with the documents, giving him what he later admitted was a calculated opportunity to hide the papers in his clothing.

The report also depicts Berger as lying to Archives staff about thefts that an unnamed senior Archives official said had made her and her staff feel "almost physically ill." It said Berger knowingly made false statements to the media after word of the FBI probe surfaced and improperly allowed a spokesman, Joe Lockhart, to depict him as a victim in the affair.

Berger's attorney, Lanny Breuer, responded yesterday with a statement that Republicans had politicized and distorted "a matter that has been thoroughly investigated by the Justice Department for more than two years and effectively closed for more than a year. It is particularly troubling that they have chosen to attack not only Mr. Berger but also the dedicated professionals at the Department of Justice who handled this case."

Breuer added: "The principal allegations in this report are based on pure conjecture; not a single fact is offered to support them." He said Berger had cooperated with the Justice Department and had moved on.

The Justice Department said yesterday that it had no evidence Berger's actions had deprived the commission of any documents.

The report called the FBI and Justice Department's lack of interest in Berger's first two visits to the Archives, in May and June 2003, "disturbing" and "inexplicable," particularly in light of his eventual admission to having improperly removed classified notes he took during one of those visits. It said Berger was never given a polygraph test despite having agreed to it as part of his plea bargain with the Justice Department in 2005.

The report also provided a more vivid account of what an unnamed Archives staff member described as Berger's apparent attempt to take some material out in his pants, an allegation Berger has repeatedly denied. The staff member, one of only four Archives employees cleared to see all the documents that Berger came to review, wrote that "there was clearly something there more than his pants and socks."

The report said Berger took a special interest during his early visits in files from the office of former White House counterterrorism official Richard A. Clarke, which included uninventoried draft documents, memos, e-mail messages and handwritten notes. "Had Berger removed papers . . . it would be almost impossible for Archives staff to know," the report stated.

The report quoted a lawyer at the Archives, Jason R. Baron, as acknowledging that as a result "it is conceivable that the 9/11 commission may not have received" all the requested documents.

A spokeswoman for the Archives, Susan Cooper, said "at the time, the National Archives was confident that the 9/11 commission received all the materials. . . . You can't ever guarantee anything."

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