July 20, 2004
WASHINGTON - Sandy Berger, former President Clinton's national security adviser, is under criminal investigation by the Justice Department after highly classified terrorism documents disappeared while he was reviewing what should be turned over to the Sept. 11 commission.
Berger's home and office were searched earlier this year by FBI agents armed with warrants after the former Clinton adviser voluntarily returned some sensitive documents to the National Archives and admitted he also removed handwritten notes he had made while reviewing the sensitive documents.
However, some drafts of a sensitive after-action report on the Clinton administration's handling of al-Qaida terror threats during the December 1999 millennium celebration are still missing, officials and lawyers told The Associated Press.
Al Felzenberg, spokesman for the Sept. 11 commission, said Tuesday the Berger investigation will not impact the panel's work in any way. The 10-member bipartisan panel releases its final report on Thursday.
"This is a matter between the government and an individual," he said. "They were not our documents, and we believe we have access to all the materials we need to see to do our report."
Deputy Attorney General James Comey said he could not comment on any ongoing investigation but said prosecutors take "very, very seriously" any allegation of mishandling of classified documents.
"It's our lifeblood, those secrets," Comey told reporters at the Justice Department.
President Bush, walking toward his helicopter on the South Lawn, ignored a shouted question about Berger. White House officials referred questions to the Justice Department.
Berger and his lawyer said Monday night he knowingly removed the handwritten notes by placing them in his jacket and pants, and also inadvertently took copies of actual classified documents in a leather portfolio.
"I deeply regret the sloppiness involved, but I had no intention of withholding documents from the commission, and to the contrary, to my knowledge, every document requested by the commission from the Clinton administration was produced," Berger said in a statement to the AP.
The Archives, which is the nation's repository for presidential papers, is believed to have copies of some of the missing documents.
Lanny Breuer, one of Berger's attorneys, said his client has offered to cooperate fully with the investigation but had not yet been interviewed by the FBI or prosecutors. Berger has been told he is the subject of the criminal investigation, Breuer said.
Berger served as Clinton's national security adviser for all of the president's second term and most recently has been informally advising Democratic presidential candidate John Kerry. Clinton asked Berger last year to review and select the administration documents that would be turned over to the commission investigating the Sept. 11, 2001, terrorist attacks.
The FBI searches of Berger's home and office occurred after National Archives employees told agents they believed they witnessed Berger place documents in his clothing while reviewing sensitive Clinton administration papers and that some documents were then noticed missing, officials said.
When asked, Berger said he returned some classified documents that he found in his office and all of the handwritten notes he had taken from the secure room, but could not locate two or three copies of the highly classified millennium terror report.
"In the course of reviewing over several days thousands of pages of documents on behalf of the Clinton administration in connection with requests by the Sept. 11 commission, I inadvertently took a few documents from the Archives," Berger said.
"When I was informed by the Archives that there were documents missing, I immediately returned everything I had except for a few documents that I apparently had accidentally discarded," he said.
Breuer said Berger believed he was looking at copies of the classified documents, not originals.
There are laws strictly governing the handling of classified information, including prohibiting unauthorized removal or release of such information.
Government and congressional officials familiar with the investigation, who spoke only on condition of anonymity because the probe involves classified materials, said the investigation remains active and no decision has been made on whether Berger should face criminal charges.
The officials said the missing documents were highly classified, and included critical assessments about the Clinton administration's handling of the millennium terror threats as well as identification of America's terror vulnerabilities at airports to sea ports.
David Gergen, who was an adviser to Clinton and worked with Berger for a time in the White House, said Tuesday, "I think it's more innocent than it looks."
Appearing on NBC's "Today" show, Gergen said, "I have known Sandy Berger for a long time. He would never do anything to compromise the security of the United States." Gergen said he thought that "it is suspicious" that word of the investigation of Berger would emerge just as the Sept. 11 commission is about to release its report, since "this investigation started months ago."
Berger testified publicly at one of the commission's hearings about the Clinton administration's approach to fighting terrorism, while the former president met in private with the commission to answer questions.
Berger himself had ordered his anti-terror czar Richard Clarke in early 2000 to write the after-action report and has publicly spoken about how the review brought to the forefront the realization that al-Qaida had reached America's shores and required more attention.
The missing documents involve two or three draft versions of the report as it was evolving and being refined by the Clinton administration, according to officials and lawyers.
In the FBI search of his office, Berger also was found in possession of a small number of classified note cards containing his handwritten notes from the Middle East peace talks during the 1990s, but those are not a focal point of the current criminal probe, according to officials and lawyers.
Breuer said the Archives staff first raised concerns with Berger during an Oct. 2 review of documents that at least one copy of the post-millennium report he had reviewed earlier was missing. Berger was given a second copy that day, Breuer said.
Officials familiar with the investigation said Archive staff specially marked the documents and when the new copy and others disappeared, Archive officials called Clinton attorney Bruce Lindsey to raise concerns.
Berger immediately returned all the notes he had taken, and conducted a search and located two copies of the classified documents on a messy desk in his office, Breuer said. An Archives official came to Berger's home to collect those documents but Berger couldn't locate the other missing copies, the lawyer said.
Breuer said Berger was allowed to take handwritten notes but also knew that taking his own notes out of the secure reading room was a "technical violation of Archive procedures, but it is not all clear to us this represents a violation of the law."
Justice officials have informed the Sept. 11 commission of the Berger incident and the nature of the documents in case commissioners had any concerns, officials said.
Berger is the second high-level Clinton-era official to face controversy over taking classified information home.
Former CIA Director John Deutch was pardoned by President Clinton just hours before Clinton left office in 2001 for taking home classified information and keeping it on unsecured computers at his home during his time at the CIA and Pentagon. Deutch was just about to enter into a plea agreement for a misdemeanor charge of mishandling government secrets when the pardon was granted.