Sunday, December 24, 2006

Affirming Our Worst Suspicions

Kudos to Richard Miniter, who has obtained--and posted--the National Archives Inspector General's report on Sandy Berger's theft of classified documents from one of the agency's "reading rooms." The report can be reviewed in full at Pajamas Media, along with his always-insightful editorial comments.

Reading the IG report tends to affirm our worst suspicions about the Berger affair. In other words, the former Clinton national security advisor got a proverbial slap on the wrist for security lapses that would land most military personnel (and intelligence officials) in federal prison. Mr. Berger pleaded guilty in late 2005 to misdemeanor offenses related to illegally taking, retaining and destroying classified documents. His "punishment" consisted of a $50,000 fine (chump change to a man of Berger's means); loss of his security clearance for three years, and 100 hours of community service. And, as we've noted before, the Bush Justice Department didn't exactly cover itself in glory through its prosecution of Mr. Berger. Their recommended sentence was even lighter than the punishment actually imposed.

Reviewing the IG report, it seems clear that the charges and sentence didn't fit the crimes. On page 3 of the report, we learn that Berger was the only Clinton Administration official with the necessary clearances for reviewing highly classified "W" files relating to Osama bin Laden, Al Qaida, the terror organization's relationship to the Sudan, and related events. Mr. Berger had been designated to review the material, in preparation for his testimony before the 9-11 Commission.

The identification of "W" files in the Berger case is a major revelation, in our estimation. Previously, we theorized that the material pilfered by Berger was probably at the Top Secret/Sensitive Compartmentalized Information (TS/SCI) level, representing some of the most classified information in our intelligence archives. Designation of the stolen files at the "W" level suggests that they were classified at an even higher level, restricted to only the most senior government officials.

Within the realm of TS/SCI information, there are various sub-compartments and special access programs (SAR/SAP) that require additional clearances. Information disseminated in these channels is sometimes identified by a single letter. During my career, I had access to three alpha-designated programs, plus others identified by a particular codeword. I won't reveal those designations in this forum, but they are familiar to those who have held TS/SCI clearances. Security for this information is extremely tight; in some cases, anyone reading a particular document must sign a review sheet; in other cases, you can only access the data by entering a special vault within a SCIF (Sensitive Compartmentalized Information Facility). In my years as a spook, I never held a "W" clearance, suggesting (again) that the caveat covers extraordinarily sensitive information.

And remember, this is the same intelligence data that Sandy Berger removed from the National Archives, hid under a construction trailer, and later moved to his office. Berger also tried to destroy duplicate copies of particular documents, by tearning them into pieces. Then, when confronted by officials, he lied about his actions.

Equally puzzling is the IG's disposition of this matter. According to the report, archive employees did not believe that Berger removed the documents to disburse their contents, or commit espionage. This assertion seems to contradict one of the basic tenents of security investigations, i.e. material that is lost or illegally removed from designated storage facilities is considered compromised until proven otherwise. It also seems odd that the IG would simply rely on the opinion of archive employees to determine whether the material was compromised. And their "opinions" were based solely on observation of Berger's actions.

To this day, we have no idea who might have stumbled across those files during their time under that construction trailer. Ditto for the fragments placed in the trash container, and the 10-20 pages of notes that Berger removed during his first visit to the reading room. There's also the issue of those private cell phone calls that Berger made during his visits. Cell phones, PDAs, digitial cameras and other electronic devices are normally forbidden in SCIFs. Why was Berger allowed to bring his cell phone inside and make those calls--without supervision from archive staffers?

Sadly, the Berger affair is likely to be buried by the new Democratic Congress and the Bush White House, which apparently consider the matter closed. We'll see how long the stonewalling persists. The entire matter stinks to high heaven, and there needs to be a full, independent investigation of what Sandy Berger did inside the National Archives, and how it may have compromised the nation's security.


Parallel said...

Sandy Berger's special, rules-don't-apply-to-him treatment apparently started even before he did anything wrong.

On Page 4 of the PDF report, we read that "On all four visits to Archives I, Mr. Berger signed in as a visitor and was escorted to [redacted] office, room [redacted], where he conducted his review of documents including [redacted] material. Mr. Berger was allowed to bring personal items into the room including his portfolio and cell phone." Much of the rest of the paragraph is redacted, but the same paragraph refers to DCID 6/9: Physical Standards for Sensitive Compartmented Information Facilities section 2.3.2. states in section 2.3.2 that "SCI shall never be handled, processed, discussed, or stored in any facility other than a properly accredited SCIF unless written authorization is granted by the CSA." The FAS version of SCID 6/9 also includes Annex D, whch prohibits personally-owned cellular phones into SCIFs.

Skip forward to Page 21 of the report. We read that "After learning [Mr. Berger] was given special treatment by viewing the documents in [redacted] office, he suggested no exceptions to the rules should be given to former National Security Advisors or others."

My reading of the report is that NARA staff removed SCI material from an Archives I SCIF, took it to a non-SCIF office, and let Mr. Berger read it there. In other words, the improprieties started before Mr. Berger was handed his first document.

Parallel said...

Until I read the NARA IG report myself I had assumed that Sandy Berger had stolen materials from a SCIF, which if run by FAS's version of DCID 6/9 isn't something that happens by mistake. However, my recent reading of the report indicates a much more complicated situation.

First, someone at NARA violated the DCID 6/9 SCIF rules before Mr. Berger ever saw his first document, so that staffer would have to be prosecuted too. Is it worth frying some poor staffer who was just trying to make life easier for a big-shot? Yeah, maybe it would have been appropriate to make an example of the NARA guy, but that's a very different question than whether or not to hyper-aggressively prosecute a political appointee.

Second, if the Bush folks went ahead with a full-scale prosecution of Mr. Berger it would open them up to counter-charges of entrapment. If I were a defense lawyer for Mr. Berger, I would claim to all the world that this whole affair was a set-up job--the Bush administration tried to unfairly entrap Mr. Berger by violating the DCID/SCIF rules to dangle classified documents in front of him. You can see the beginning of that defense in Mr. Berger's statement that "no exceptions to the rules should be given to former National Security Advisors or others."

I may not like it, but given these circumstances I can better understand why a prosecutor type person might prefer to cut a deal.

Parallel said...

The Washington Post has named the staffer who apparently broke the rules for Sandy Berger:

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.