WARNING: this post may be a result of hanging around with too many lawyers for too long–an experience which may have made me too quick to word-parse.
We now know that Berger took whatever documents he was taking at least three separate times. One of his major defenses (as expressed through his lawyers) has been that most of what he took were his ‘handwritten notes’. The normal inference from this is that he went to the archives, looked at documents, wrote down notes about the documents, took those notes with him. The implication is that he took his own notes, a violation but not really a big deal.
But there are now reports that he took multiple drafts of one particular document, with his handwritten notes from the time the document was being created. Someone please tell me that I’m being too suspicious of Berger’s lawyers when I suspect that when they say he took ‘his handwritten notes’ they might know that he took drafts with his handwritten notes but were trying to mislead us into believing that this is all the same as taking summaries of the documents he was reviewing.
Also, how did some of the documents get ‘inadvertantly destroyed’? I can see Berger inadvertantly destroying his personal ‘summary’ notes–they probably looked like lots of notes. But the documents he inadvertantly took from the archives look different from other documents. How did he destroy them by accident?
I also wondered how he could know he destroyed them when he didn’t know he took them in the first place. Likely the archive staff said “you took x, y and z, give them back” and he said “you’re right, here’s x and y, but I can’t find z.”
But if they said, “you took some documents, give them back” and he said “you’re right, here’s x and y but I can’t find z;” how does he know he had z?
this post may be a result of hanging around with too many lawyers for too long–an experience which may have made me too quick to word-parse.
I thought you were a lawyer . . . .
A couple of observations from your questions…
Berger was claiming to have misplaced or lost the missing copies that he had not actively “Destroyed” them… It was not a case of “…oops that dropped in a shredder”… More of “I know I had a copy of that, it was right here, Oh, I must have tossed it in the garbage when I tossed out my copy of the Sunday Post”…
Again it is important to emphasize with all the spin going on out there that the documents available for review in the archive (whether type written memos, reports, or even his handwritten notes done at the time) were copies not the originals…. No matter what he may have taken inadvertently or otherwise it did not remove the information from the government records… The originals were and are still available for anyone with the proper clearance to read and review…
Tommyd….
No matter what he may have taken inadvertently or otherwise it did not remove the information from the government records
Cite?
The originals were and are still available for anyone with the proper clearance to read and review
Cite?
These statements go contrary to everything I’ve read. In fact, the argument that his cavalier treatment of TS-codeword documents is excusable because they’re not originals is completely without merit. The copies have the same level of classification as the originals, and national security would be damaged to the same extent if a copy were compromised.
Where the stolen-copies story has application at all is in settling question of motive. It’s not at all clear to me whether Berger’s motive is relevant to the offense of unauthorized removal of highly classified documents, or instead applies to some other offense. Even if it was done by accident (I doubt even Berger’s lawyer believes this) a violation of national security policy has occurred and must be dealt with.
Slarti
The “copies” recognition is to point out that it wasn’t an attempted cover-up if you think that goes to motive or not is irrelevent. That argument is showing that he wasn’t taking information that may be important to the commission or future historians/commissions.
Sebastion How do you know this:
“But the documents he inadvertantly took from the archives look different from other documents,”
is true?
Cite?
“a violation of national security policy has occurred and must be dealt with”
It is being dealt with. Apparently now that there is partisan hay to be harvested it is being dealt with faster than the Plame outing which is by many standards a bigger breach of national security.
Perhaps there is partisan hay. But it’s hay that’s within reach, as opposed to the Plame variety that lies in fields that cannot be located at this time. Just because it’s partisan hay, doesn’t mean that it ought not to be cut.
To stretch a figure of speech until it screams…
“Panel spokesman Alvin Felzenberg said yesterday that the panel is confident, based on records and other evidence, that it has been given copies of all the documents under investigation in Berger’s case.”
http://www.washingtonpost.com/ac2/wp-dyn/A64379-2004Jul20?language=printer
Why would you say something like this?
“the Plame variety that lies in fields that cannot be located at this time”?
Cite
Do you mean ‘conveniently’ cannot be located – as in one party rule precludes it?
Von, I am that is why I hang out with them too much.
Carsick, I have been informed that such documents have security stamps and other markings on them.
As for destroying copies as a coverup–if you have millions of documents, and you are the person who knows what is important to look for, destroying the most easily accessible copies is right up on the edge of being just as good as destroying the copies and originals. Hell, just misfiling things can be as good as destroying the documents in a large set of documents.
“as opposed to the Plame variety that lies in fields that cannot be located at this time”
Great moments in the passive voice.
Slart, what happened to the pause?
In neither case have any charges yet been filed, or arrests made. Why is one “in reach” now, but not the other?
Are you implying he had access to the entire archive and was able to misfile things?
Cite?
My guess (yes just my guess just like every other speculation here) is that copies were made for the commission at a fairly recent date so the archive staff probably won’t get lost finding them again so soon.
Hey, how come I have to keep writing in my personal informaton everytime? A conspiracy of inconvenience?
Why is one “in reach” now, but not the other?
Let’s see: we have a crime, a perpetrator, and a confession. This constitutes “within reach” to my way of thinking.
Remember before Deutch was pardoned he was looking at a misdemeanor charge.
He had mishandled THOUSANDS of documents.
Don’t get your hopes up too high about charges.
The leak and its timing are what was harvested not the investigation.
I know I’m veering into post-Clintonian parsing in what I’m about to say (and that way lies madness) but here’s my dictionary’s definition of copy
By definition #3 then the original is a copy.
Black is white and if it turns out white is white then it’s not the president’s fault unless you’re talking about Clinton in which case it is the ex-president’s fault.
“Let’s see: we have a crime, a perpetrator, and a confession. This constitutes ‘within reach’ to my way of thinking.”
I’ll just sit back and wait for actual charges, if you don’t mind (and I’m sure you won’t).
“Are you implying he had access to the entire archive and was able to misfile things? Cite?”
Argh, please reread what I wrote. I make no such implication AT ALL. Please don’t ask me to cite things that I don’t say.
I suggest that taking copies can be almost as bad as taking originals when there are enough documents to wade through. I ANALOGIZED that to intentional misfiling–which isn’t as bad as destroying or removing–but can still be almost the same as destroying in really large systems of documents.
What? You don’t like looking for misplaced case files before a final?
Again, I believe, due to the recent relevence, the archive staff had great familiarity with the shelves where the copies and originals were held.
Were held? Did I say WERE held? Slip. That’s a slip. ARE held.
Umm, once again, I didn’t suggest that Berger was able to actually misfile anything.
No matter what he may have taken inadvertently or otherwise it did not remove the information from the government records
Cite?
The originals were and are still available for anyone with the proper clearance to read and review
Cite?
—
The 9/11 Commission says “We have every one of those documents”
——-Here’s your citation, (bolding mine) via Talking Points Memo quoting from an interview with Commissioners Gorelick and Gorton on Lou Dobbs Tonight:
Then there’s 9/11 Commissioners Gorelick and Gorton …
DOBBS: Let me ask you, not necessarily directly on point, but certainly related. Sandy Berger, the former head of the national security — national security adviser under the Clinton administration, accused of, and admitting taking classified documents from the National Archives, those notes, whether copies or originals still unclear. Did the commission review that material, to what — can you shed any light on what happened there? Slade Gorton, first.
GORTON: Well, we can’t shed any light on exactly what happened there and on Sandy Berger’s troubles with the Justice Department and the Archives. What we can say unequivocally is we had all of that information. We have every one of those documents. All of them have — are infused in and are a part of our report.
DOBBS: So the commission was denied no information as a result of whatever Sandy Berger did or did not do at the National Archives?
GORTON: That’s precisely correct.
GORELICK: And we have been so assured by the Justice Department.
Dobbs, Gorton & Gorelick
Lou Dobbs Tonight
July 22nd 2004
Just a small point. The fact, if indeed it is a fact, that the archives (after catching Berger) can reconstruct what he took, does not speak to Berger’s intentions when he took them. It especially does not speak to what would have happened had he not been caught.
“It especially does not speak to what would have happened had he not been caught.”
That’s fair.
These facts do, however, save us from an endless stream of Instapundian speculation about what the report would have said (surely it would have blamed everything on Clinton) had Berger not dastardly undermined us.
Thank God. There’s already enough mewling excuse-making to churn my stomach.
Two things:
1) I’m not really speculating on what Berger might have had in mind in taking multiple copies of at least one document, or even engaging in unauthorized relocation of highly classified information. Just that the latter is illegal as hell. I’m noting that the former looks odd, but not forming any conclusions.
2) I don’t believe I’ve declared that he was able to remove all copies of any given document, so the point Persimmon makes is fair, but irrelevant.