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What Did Sandy Berger Burgle?

As this Washington Post report indicates, we still don't know for sure what Sandy Burglar took from the National Archives.

A report last month by the Republican staff of the House Oversight and Government Reform Committee said for the first time that Berger's visits were so badly mishandled that Archives officials had acknowledged not knowing if he removed anything else and destroyed it. The committee further argued that the 9/11 Commission should have been told more about Berger and about Brachfeld's concerns, a suggestion that resonated with Philip Zelikow, the commission's former executive director.

Zelikow said in an interview last week that "I think all of my colleagues would have wanted to have all the information at the time that we learned from the congressional report, because that would have triggered some additional questions, including questions we could have posed to Berger under oath."

The commission's former general counsel, Dan Marcus, now an American University law professor, separately expressed surprise at how little the Justice Department told the commission about Berger and said it was "a little unnerving" to learn from the congressional report exactly what Berger reviewed at the Archives and what he admitted to the FBI — including that he removed and cut up three copies of a classified memo.

"If he took papers out, these were unique records, and highly, highly classified. Had a document not been produced, who would have known?" Brachfeld said in an interview. "I thought [the 9/11 Commission] should know, in current time — in judging Sandy Berger as a witness . . . that there was a risk they did not get the full production of records."

Sandy Berger did not "burgle" any thing, as he did not commit burglary — the act of breaking and entering to steal — but he did steal documents, and we only have his word that he did not steal anything that was irreplaceable or otherwise left a hole in the historical record. Nonetheless, the man will soon be eligible to have his security clearance restored.

WHOI Jacket:
I know it's cliche' now to say this, but compare the media's reaction to this case to the hypothetical situation of Karl Rove doing the exact same acts...
2.21.2007 10:36am
Bruce Hayden (mail) (www):
I know that it wasn't technically burglary, but it is such a nice play on his name: "Sandy Burglar" (or apparently "Burgler")

However, in fairness, the American Heritage Dictionary defines "burglary" to be "The act of entering a building or other premises with the intent to commit theft". Obviously, this isn't the legal defintion that Jonathan was using, but still...
2.21.2007 11:14am
JonC:
Under NY state law at least, Berger would also be guilty of burglary. The NY Penal Code does not define burglary as "the act of breaking and entering to steal," as Prof. Adler suggests: "A person is guilty of burglary . . . when he knowingly enteres or remains unlawfully in a building with intent to commit a crime therein." N.Y. Penal Code ยง 140.25. I'm not sure to what extent the NY statute differs from common law burglary, or what the rule on the D.C. books is.
2.21.2007 11:29am
A.S.:
I don't think all the elements are satisfied. Burger would not have "enter[ed] or remain[ed] unlawfully in a building".
2.21.2007 11:32am
dearieme:
It all depends what the meaning of "is a burglar" is.
2.21.2007 11:38am
Insignificant Dallasite:
I don't think all the elements are satisfied. Burger would not have "enter[ed] or remain[ed] unlawfully in a building".


But didn't he have license to enter the archives for a specific purpose? And if he had asked whoever was in charge that day if he could come in and steal documents, wouldn't they have said no? Isn't that trespass?
2.21.2007 11:52am
Hattio (mail):
I haven't been following this story. Could someone explain to me what Berger's crime has to do with the 9/11 Commission?
2.21.2007 11:57am
Kevin Murphy:
And yet Libby is the one on trial.
2.21.2007 11:59am
Kazinski:
Hattio:
Berger was given access to the classified material in the National archives so he could review documents prior to his testimony to the commission. I believe he was also supposed identify documents that might be of interest to the 9/11 Commission. Instead he pilfered and destroyed an unknown number of documents, some of which were originals that had never been copied.

And evidently the Commission wasn't told the full extent of Berger's misdeeds. In fact it doesn't appear that Berger even gave DOJ a full accounting of what he destroyed, before he was let off the hook.
2.21.2007 12:25pm
Shelby (mail):
And yet Libby is the one on trial.

On trial for (allegedly) lying ... about a leak that he did not make (and which investigators knew he did not make when they compelled his testimony) ... about a person whose identity was not legally protected ... in connection with a spat between two intelligence factions.

And not only is Berger getting his security clearance back, stealing and destroying multiple top-secret documents receives, what, 0.1% of the media attention as Libby's supposed transgression. I'm constantly amazed this country manages to function at all.
2.21.2007 12:47pm
JohnAnnArbor (www):
All I ever had access to was SECRET-level material, and we were told jail awaited us if we intentionally mishandled it (and job termination and other penalties, perhaps even jail, if we did so UNintentionally).

These documents were TOP SECRET and/or secure compartmentalized information, and nothing happened to him.

One set of justice for the underlings, another for the "important" people. Duly noted.
2.21.2007 1:30pm
Brett Bellmore:
Democrats tend to go berserk at the very suggestion, but there's ample reason to suspect that the Republican Congressional leadership were blackmailed into taking a dive on the impeachment. And if that really was the case, then it's only to be expected that anybody who was in a position in the Clinton administration to know anything incriminating will be untouchable until that leadership has been replaced by the passage of time. ESPECIALLY if they happen to get caught cleaning up loose ends...
2.21.2007 1:40pm
Aleks:
Re: but there's ample reason to suspect that the Republican Congressional leadership were blackmailed into taking a dive on the impeachment.

Huh? If the GOP House delegation was (successfully) blackmailed on impeachment then (since they did in fact vote to impeach) I would assume that the blackmailer was someone who favored impeachment, not someone in the Clinton administration. But then, this is a usual problem with conspiracy theories: they become so convoluted as to make no logical sense.
2.21.2007 2:23pm
Brett Bellmore:
Let's see, we've got George Stephanopoulos openly threatening that the administration would adopt the "Ellen Rometsch strategy", a direct reference to blackmail of members of Congress using FBI files.

We've got Larry Flynt publicly soliciting blackmail material on Republican leaders.

We've got Livingston forced to resign due to the release of such material.

We've got the House voting to hold a "wide ranging and open ended" impeachment investigation, followed by the Republican leadership deciding that very night to instead skip the investigation, and bring a list of charges shorter and less serious than the defeated Democratic counter-proposal would have provided for.

We've got Senate Republican leaders refusing to permit the trial to be held, instead going straight to a vote to aquit without the presentation of evidence.

AND, we've got the subsequent untouchable status of members of the Clinton administration, who demonstrably can commit serious felonies with relative impunity.

Yup, absolutely no reason to suspect blackmail.
2.21.2007 2:48pm
DaveN (mail):
Back on topic--my state essentially defines "burglary" as entering almost any kind of structure with the intent to commit larceny or any felony. Thus, if Berger entered the National Archives with the intent to steal the documents, he committed burglary upon entry.
2.21.2007 2:50pm
Spitzer:
Here's what I simply don't understand: Why did Sandy do it? Has he given any explanations?
2.21.2007 2:53pm
K:
Spitzer:

Unless we know exactly what he took or destroyed we can't know why. He certainly is bright enough to have withheld the worst unless he knew he could not conceal it.

Fun speculation follows:

He probably know exactly what was in there. Then he came across something quite inconvenient for himself, Hillary, or Bill. Probably himself.

So you take a few harmless papers along with the hot one. That allows carelessness as a defense.

What was on the hot one? Probably a handwritten comment. Those won't be in an electronic file so you may get the only copy. And if the document was copied onto microfilm there is a good chance the handwriting will be illegible. Handwriting often is on microfilm.
2.21.2007 3:34pm
Lakhim (mail):
Dear Brett:

Seeing as how a whopping five republicans voted not guilty, I fail to see how Starr's show trial would have changed anyones mind. Even if those five voted en bloc with their fellow party members someone on the democratic bench would have to move to reach a 67 vote majority (which wasn't going to happen). There was no sizable republican effort to acquit clinton, as even the five who voted not guilty were the usual suspects, highly moderate republicans.
2.21.2007 4:58pm
glangston (mail):
Entry into a business with intent to steal something is defined as second degree burglary in CA. A misdemeanor generally.

Why are we so anxious to give him back his clearance? Seems like he has friends in high places or is he just one of the Animals that are more equal than others?

Now he's become a precedenct and NASCAR wouldn't kick Waltrip's team out for cooking up "advanced" fuel for his car.

What's it going to take for a little justice?
2.21.2007 5:35pm
Brett Bellmore:
Lakim, I've presented a theory why Berger is being treated with kidd gloves, even to the extent of having an unneeded security clearance restored after being proven to have abused it. And I've provided evidence, admittedly circumstantial, to back up that theory.

Do YOU have a theory why Berger would ever again be allowed access to classified documents, after behavior which would normally have resulted in him doing hard time?
2.21.2007 6:10pm
Loki13 (mail):
Brett,

The other day, I was confronted by someone on the left who explained to me that 9/11 was a Cheney-led conspiracy. I'll spare you the details (there's an hour of my life I'll never get back), but I was aghast at the idiocy and gullibility of that particular leftist to buy into some of the most extreme and bizarre conspiracy theories. Hatred had warped his mind. How could someone on the left allow their dislike of a political figure on the opposite side to so disrupt their rational thinking process?

Thankfully, you have restored the balance. For the Yin, there is a Yang.

Sometimes 9/11 is destroyed by Islamic terrorists. Sometimes Sandy Berger gets treated differently because he's powerful and connected (but not because of a long-running Clinton blackmail scheme).

And sometimes a cigar is just a cigar.
2.21.2007 8:41pm
Brett Bellmore:
And sometimes blackmail really is blackmail. But I agree it will be years, if ever, before we can know for sure; That's the nature of blackmail, when it's successful.
2.21.2007 9:10pm
Deoxy (mail):
Brett,

Comparing an unlikely but quite possible scenario (beliving there was blackmail involved when there were people publicly stating that was there intent) to 9/11 being done on purpose by our own government (mass murder of Americans for political gain) is quite a bit beyond the pale.
2.22.2007 12:10pm
Dick Schweitzer (mail):
Can anyone tell us whther Burger has returned to his previous representation of the The Chinese Peoples Republic?

If so, will restoration of security clearance help him in his work? Does he need it? What for?

Can the Executive revoke it? If not why not?
2.22.2007 2:53pm