Thursday, April 07, 2005

Berger Bargain II

After intensive training from Bill Clinton on the importance of parsing every public statement to death, we'll plead force of habit on this post. As noted yesterday, the Wall Street Journal reported on the editorial page:
"So we called Justice Department Public Integrity chief prosecutor Noel Hillman, who assured us that Mr. Berger did not deny any documents to history. 'There is no evidence that he intended to destroy originals,' said Mr. Hillman. 'There is no evidence that he did destroy originals. We have objectively and affirmatively confirmed that the contents of all the five documents at issue exist today and were made available to the 9/11 Commission.'"
So what exactly is meant by "originals?" We regular people think of an "original" based on what the computer printed on it. but the legal definition is different. Five identical copies distributed before a meeting may be five new, different originals after the meeting. If someone writes anything on one of the copies, even a doodle, it is a new "original," different from the freshly printed version.

So if someone at the time, Sandy Berger or Bill Clinton for example, had scribbled something embarassing in the margins of one "copy," that document is no longer a "copy" in the legal sense. As Bill himself would say, it all depends on the meaning of the word "copy." Did the documents Berger destroyed have any differences at all, even trivial marks, from the ones that still exist? We note that Mr. Hillman states that "the contents" of the documents still exist. That's not quite the same as saying the destroyed documents were identical to documents that are still in the archives.

So were they? Unfortunately we will probably never know. Is is possible that Sandy Berger was willing to risk prison out of sheer laziness, as the story goes? Is is possible that he destroyed some exact duplicates of other documents for no other reason than that they were unnecessary to him and to history, despite the risk of prison? If it is true that he was so cavalier with the documents with so much at stake, should he ever have access to another classified document in this lifetime?

UPDATE: April 1 post from Hindrocket:
"So Berger removed five copies of the Clarke report, carefully destroyed three of them "late one evening," and returned the other two to the Archives. Obviously he reviewed the notes on the five documents and destroyed the three that contained information damaging to the reputation of the Clinton administration. I do not find reassuring the Post's suggestion that these were "copies only" and that it "remains unclear whether Berger knew that." Obviously all five copies of the Clarke report were "copies." But they contained unique notes, and Berger certainly thought that they were the only "copies" of those notes in existence, or it would make no sense to destroy them. I have seen no evidence whatsoever that he was wrong."

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