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Berger Case Still Roils Archives, Justice Dept.

By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, February 21, 2007

In a chandeliered room at the Justice Department, the longtime head of the counterespionage section, the chief of the public integrity unit, a deputy assistant attorney general, some trial lawyers and a few FBI agents all looked down at their pant legs and socks.

While waving his own leg in the air in illustration, Paul Brachfeld, inspector general of the National Archives and Records Administration, asked the group rhetorically if "something white" could be easily mistaken if it was wrapped around their legs, beneath their pant legs.

Under debate during the Nov. 23, 2004, meeting was Brachfeld's contention that President Clinton's former national security adviser Samuel R. "Sandy" Berger could have stolen original, uncatalogued, highly classified terrorism documents 14 months earlier by wrapping them around his socks and beneath his pants, as National Archives staff member John Laster reported witnessing.

Brachfeld said he was worried that during four visits in 2002 and 2003, Berger had the opportunity to remove more than the five documents he admitted taking. Brachfeld wanted the Justice Department to notify officials of the 9/11 Commission that Berger's actions -- in combination with a bungled Archives response -- might have obstructed the commission's review of Clinton's terrorism policies.

The Justice Department spurned the advice, and some of Brachfeld's colleagues at the Archives greeted his warnings with accusations of disloyalty. But more than three years later, as Brachfeld and House lawmakers have pushed new details about Berger's actions onto the public record -- such as Berger's use of a construction site near the Archives to temporarily hide some of the classified documents -- Brachfeld's contentions have attracted fresh support.

A report last month by the Republican staff of the House Oversight and Government Reform Committee said for the first time that Berger's visits were so badly mishandled that Archives officials had acknowledged not knowing if he removed anything else and destroyed it. The committee further argued that the 9/11 Commission should have been told more about Berger and about Brachfeld's concerns, a suggestion that resonated with Philip Zelikow, the commission's former executive director.

Zelikow said in an interview last week that "I think all of my colleagues would have wanted to have all the information at the time that we learned from the congressional report, because that would have triggered some additional questions, including questions we could have posed to Berger under oath."

The commission's former general counsel, Dan Marcus, now an American University law professor, separately expressed surprise at how little the Justice Department told the commission about Berger and said it was "a little unnerving" to learn from the congressional report exactly what Berger reviewed at the Archives and what he admitted to the FBI -- including that he removed and cut up three copies of a classified memo.

"If he took papers out, these were unique records, and highly, highly classified. Had a document not been produced, who would have known?" Brachfeld said in an interview. "I thought [the 9/11 Commission] should know, in current time -- in judging Sandy Berger as a witness . . . that there was a risk they did not get the full production of records."

In an April 1, 2005, press conference and private statements to the commission, the Justice Department stated instead that Berger had access only to copied documents, not originals. They also said the sole documents Berger admitted taking -- five copies of a 2001 terrorism study -- were later provided to the commission.

Those assertions conflicted with a September 2004 statement to Brachfeld by Nancy Kegan Smith, who directs the Archives' presidential documents staff and let Berger view the documents in her office in violation of secrecy rules. Smith said "she would never know what if any original documents were missing," Brachfeld reported in an internal memo.

In a letter to House lawmakers last week, Acting Assistant Attorney General Richard A. Hertling did not address the issue of why the department told the commission so little. But Hertling wrote that in numerous interviews, "neither Mr. Berger nor any other witness provided the Department with evidence that Mr. Berger had taken any documents beyond the five."

Hertling said the department "stands by its investigation" and believes the guilty plea it negotiated with Berger on April 1, 2005, "was the best one possible in light of the available evidence." He also criticized the Archives staff for failing at the time to confront Berger, search him or contact security officials, saying this failure "had to be weighed against the evidence."

Brachfeld has similarly expressed frustration that Smith and others who suspected Berger of wrongdoing chose not to inform him of their suspicions until more than a week after Berger's last visit to the Archives. "If I had been notified, I would have put cameras in the room. I would have caught him leaving with documents on him. . . . We could have had FBI agents around the facility. . . . He would have been arrested," Brachfeld said.

Brachfeld pressed Justice Department officials on six occasions in 2004 to make a fuller statement to the commission about Berger's actions, to no avail. He also contacted Justice Department Inspector General Glenn A. Fine, who organized an April 2004 meeting between Brachfeld and Justice officials that convinced him that "these issues had to go before the 9/11 Commission," according to two people present.

But in a notification to the commission the following month, the department did not mention that Berger had cut up documents, that he reviewed uncatalogued originals or that Brachfeld worried that Berger's theft was greater.

In the Hertling letter, the department noted obstacles in its investigation. The FBI was not advised of the case until Oct. 15, 2003, almost two weeks after Smith concluded that Berger had stolen documents. By then, Archives General Counsel Gary Stern had called Berger and former Clinton lawyer Bruce Lindsey about it and obtained two documents from Berger, who surrendered them at home after first denying they were in his possession.

The letter also said that six months after beginning the probe and well after Berger testified to the commission, "the Department had not yet asked Mr. Berger any questions, as he had not yet agreed to an interview." Berger's lawyer, Lanny Breuer, said Berger first spoke to the FBI in March 2005 and was interviewed a second time in July of that year, after his April 1, 2005, guilty plea to unauthorized removal and retention of classified material.

Judge Deborah A. Robinson imposed a stiffer penalty in the case than the Justice Department sought, fining Berger a total of $56,905, canceling his security clearance, and requiring monthly reporting to a probation officer for two years. Breuer said Berger has also picked up trash in Virginia parks for 100 hours to fulfill a community service requirement, and he criticized the renewed attention to Berger's case.

"It never ceases to amaze me how the most trivial things can be politicized. It is the height of unfairness . . . for this poor guy, who clearly made a mistake," Breuer said.

Some of Brachfeld's colleagues have not been cheered by his new congressional support. An Archives lawyer, who Brachfeld said was one of those involved in the Berger case, this month sent Brachfeld an e-mail accusing him of poor judgment and stating that "I don't think it comes as a great surprise if I were to venture the opinion that senior management at this agency have serious problems with the manner in which your office conducted itself . . . during the Berger investigation."

On Friday, Archivist Allen Weinstein assured Brachfeld in writing, however, that this criticism did "not reflect either my views or the views of the overwhelming majority of NARA employees."

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