Don't Let Me Stop You: Berger Bargain

We were stunned by the leniency accorded Sandy Berger in his recent plea bargain with the Justice Department. This is the man who removed classified documents, dealing with the Clinton administration's response to al Qaaeda threats, from the National Archives by hiding them in his socks "inadvertently." Then he lied about his actions repeatedly. His punishment? He has agreed to pay a $10,000 fine (no doubt considerably less than his legal fees) and have his security clearance revoked for 3 years (nearly the entire remainder of the Bush adminstration!).

This agreement seems so ludicrously one-sided that Reason Express (email newsletter of the libertarian magazine) figures Berger must have something on the Administration:

"We, the general public, have no idea why Berger did what he did or what he sought to hide. Nor do we know what Berger might have done with the document besides shred it. But we can surmise, because the penalty was so light given the nature of the breach, that it was Berger and his attorneys who dictated the terms of the deal to the Justice Department and not the other way around. Perhaps the prospect of Berger's going public with just how much info the Bush administration chose to ignore about a looming al Qaeda offensive prodded Justice into deal-making mode."

That sounds a bit far-fetched to us. For one thing wouldn't Berger and co. simply have released this blockbuster, damning evidence during the election campaign to assure a Kerry presidency and gotten off the hook that way? They would obviously have had much more leverage for bargaining then than now.

An editorial in today's Wall Street Journal, also on the free OpinionJournal site, was surprisingly sanguine about the plea bargain. The Journal's reasoning:

"After a long investigation, however, Justice says the picture that emerged is of a man who knowingly and recklessly violated the law in handling classified documents, but who was not trying to hide any evidence. Prosecutors believe Mr. Berger genuinely wanted to prepare for his testimony before the 9/11 Commission but felt he was somehow above having to spend numerous hours in the Archives as the rules required, and that he didn't exactly know how to return the documents once he'd taken them out.

More than a few conservatives have been crying foul, or whitewash, in part because Mr. Berger's plea means he'll likely avoid jail and lose his security clearance for only three years. 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.'

It's worth noting that Mr. Berger will still have to explain his actions to a judge at sentencing--a judge who could reject Justice's recommendation and give him to up a year in jail. We hope the judge does insist on a full explanation of motive. Lesser officials have received harsher penalties for more minor transgressions, so a complete airing of the facts will show the public that justice is being done. But given the minimal damage from the crime, this looks to be a case where prosecutors have shown some commendable restraint against a high-powered political figure."

The journal's editorial page is certainly no bastion of liberalism, and it has been quite critical of Berger's actions in the past. However, even accepting Hillman's statements as correct (i.e. that Berger destroyed only copies and nothing was lost), the punishment is still too light in our view.

Considering Berger's position, flouting the rules on classified documents has to be more than a "tap-on-the-wrist" offense if the rules are to have any meaning. At a minimum he should have his security clearance revoked for life.