October 13, 2006 | National Review Online

The Culture of Obstruction

Imagine for a moment a public official of the highest order. He was a confidant of the vice president and the president. Entrusted with the most sensitive national defense information, he enjoyed full access to the gamut of our country's deepest secrets. In short, he was as central as any member of the executive branch to the decisions on which hinged the security of nearly 300 million Americans.

The times were tumultuous and critics abounded. Some of them accused the administration of rank incompetence, of gratuitously putting loyal public servants lives at risk. The administration circled the wagons, and our high public official became its point-man for rebutting the charges. He used his extraordinary public trust to gain access to relevant classified information.

In his ardor to protect his principals, he went overboard. He was, to put it mildly, recklessly irresponsible with intelligence. When they learned of his actions, others in government decided there was no alternative: However reluctantly, an investigation had to be opened. Investigators confronted the high public official. He was, of course, under no obligation to speak. The Fifth Amendment gave him that protection. But he calculated that the political risk of refusing to appear cooperative was too great. So he submitted to questioning … and lied, wantonly.

Quickly, evidence mounted. The high official had obstructed an official investigation — one that the press and Democrats had clamored for; one that cost the public millions. The potential jeopardy mounted, too. Under federal law, making false statements to investigators is a felony — each individual lie exposing the declarant to as much as five years in jail. Obstruction of justice is at least equally grave. And more serious still is the purloining and misusing of intelligence — each instance exposing an offender to up to ten years' incarceration. Our high public official was easily staring at a possibility of spending the remainder of his professional prime in a federal penitentiary.

Sound familiar? It should, but it's not.

For this is not about Scooter Libby and the Plame leak investigation. To be sure, the vice president's former chief of staff was probed for a violation of the espionage act over suspicion that he misused classified information in an effort to respond to Joseph Wilson's slander of the Bush administration's invasion of Iraq. But Libby was not charged with that offense after a famously zealous investigation. To this day, moreover, it remains unclear whether the classified information at issue — the unremarkable fact that Valerie Plame Wilson worked at the CIA — was of any real consequence to national security. And yes, Libby has been charged with making false statements to, and obstructing, an official investigation. But whether he actually did those things remains unsettled, and vigorously contested.

No, the high public official described above is Sandy Berger, national-security adviser to President Clinton. Berger was principally responsible for responding before the high-profile 9/11 Commission to claims that the Clinton administration did not do enough to stop al Qaeda.

Contrary to Libby's situation, the essential facts of Berger's case do not seem to be in dispute. Because of his high-level position, Berger was permitted access to the national archives to prepare for his commission testimony (and to help prepare President Clinton for his). He used that public trust as an opportunity to filch, on at least two occasions, highly classified information — stuffing some of it into his clothing to avoid detection. This bizarre behavior caused authorities to investigate and discover the theft. In the ensuing investigation, Berger brazenly lied. He told the government that his undeniable removal of the intelligence was an honest mistake … only to admit later (as the Washington Times reported) that he had quite intentionally stuffed the documents into his pants, jacket and a leather portfolio.

That's not the end of the story — not by a long-shot. Berger did not take just any documents. As recounted by National Review's Byron York, among others, he took various drafts of a so-called “after-action report” prepared by top Clinton counterterrorism officials. The purpose of the report was to assess the Clinton administration's 1999 performance in connection with terrorist threats that riddled the run-up to the millennium observance. Annotated on some of those copies is believed to be reactive commentary by some high-ranking Clinton officials. The report and the manner in which it was finalized were patently germane to the commission's investigation.

In public testimony and statements, top Clinton officials have repeatedly portrayed this period as the administration's finest hour — barely veiling the contrast of themselves to Bush officials who, in this telling, were purportedly asleep at the switch in the months before 9/11. Indeed, Berger himself told the 9/11 Commission:

In late 1999, as we approached the Millennium celebrations, the CIA warned of five to fifteen plots against American targets. This was the most serious threat spike of our time in office. My judgment was that it required ongoing attention at the highest levels of government. Accordingly, I convened national security principals, including the Director of Central Intelligence, the Attorney General, and top FBI, State and Defense officials at the White House virtually every single day for a month. I am convinced that our sustained attention and the rigorous actions that resulted prevented significant losses of life. [Emphasis supplied.]

Does the after-action report support this heroic version of events? Former Attorney General John Ashcroft, who has seen the report, says no — that the assessment indicates dumb luck was behind the foiling of, for example, the plot to bomb Los Angeles International Airport. But we can't judge for ourselves because we have never seen the report.

If that seems strange, it ought to. The imperative of publicly airing all evidence pertinent to the government's counter-terror response was deemed so essential during the commission's circus-like hearings that the Bush administration was pressured into declassifying reams of precious intelligence by the press, Democrats, and sundry Republicans. Public disclosures included information about al Qaeda's plans to attack the U.S. set forth in an August 2001 presidential daily briefing — notwithstanding that PDBs are roundly adjudged the intelligence community's most closely held product. Yet, the after-action report about well-known events that took place six years ago has, for some reason, never been declassified, much less publicized — even though we now know iterations of it were the focal point of a criminal investigation of the former National Security Adviser.

Imagine for a moment that Bush National Security Adviser Stephen Hadley or, say, Scooter Libby, had intentionally exploited his security clearance to steal top-secret documents out of the national archives. Is there any chance that would not be daily front-page fodder for the New York Times?

Would the broadcast networks, CNN, the Washington Post, and the rest of the mainstream media give us five seconds of peace if all of America had not yet been shown every jot and tittle of what any high-ranking Bush official had been caught red-handed trying to hide?

Of course, as it turns out, Berger was not content merely to conceal the drafts of the after-action report. He has admitted deliberately destroying some of the documents he took. Unauthorized destruction of classified information, it bears noting, is yet another felony violation of federal law, carrying a potential ten-year penalty.

Sandy Berger needn't worry about ten-year penalties, though. He needn't concern himself with a prosecution for false statements or obstruction of justice. He needn't sweat for two years over whether he will be charged with multiple black-and-white classified information violations.

No, Berger is home-free. Next year, when Scooter Libby starts trial on false-statement and obstruction-of-justice allegations that carry potential decades of jail time, Sandy Berger will be starting the second half of his two-year term of probation.

You see, for misconduct orders of magnitude more weighty than what Libby stands accused of, Berger was permitted by the Justice Department to plead guilty to misdemeanor mishandling of classified information. No jail time. He was fined $50,000 — and that was only because the outraged sentencing judge quintupled the $10,000 fine proposed by Berger and (astoundingly) the Justice Department.

And by 2008 — when Libby, if he were convicted, would probably start any sentence of imprisonment — Berger will even be getting his security clearance back … just in time to offer his unique skills to a prospective new Democratic administration.

The Washington Times reported on Thursday that several top House Republicans are demanding a congressional investigation into the Berger caper. One can only wonder what on earth possessed them to wait so long — Berger having lifted the classified documents in autumn 2003 (i.e., around the same time Libby was first interviewed by the FBI) and having been sentenced on the single misdemeanor charge in autumn 2005 (i.e., around the same time Libby was indicted on five felony counts). In a letter to House Government Reform Committee Chairman Thomas M. Davis III (R., Va.), the members asserted that it was important “to determine what records were destroyed, removed or are missing.” No kidding.

In this campaign season, when not incanting raunchy instant messages and explaining how “transparent” Sen. Harry Reid's finances are, Democrats are fond of prattling about the Republican “culture of corruption” and how incompetently the Bush administration has managed the war on terror.

Fine. Let's talk competence. Let's talk corruption. And let's finally see the drafts of that after-action report.

— Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.