Sandy Berger and the Ken-Starr-ing of American justice

Before I get into discussing the 9/11 Commission report, I want to focus on some really important stuff, like Sandy Berger’s socks!

The Daily Howler has been dissecting the mainstream media’s use of the unlikely tale of Sandy Berger stuffing documents into his socks.  (07/21/04 edition and the two following days.) It’s so bad, even Bill O’Reilly stands out as being particularly professional in reporting on the story!

Josh Marshall has been following this story closely at his blog, with multiple posts beginning with this one of 07/19/04, with plenty of links.

There doesn’t seem to be much doubt as to the basic facts of the Berger story.  In preparing for his testimony to the 9/11 Commission, Berger was reviewing classified documents held at the National Archives.  He violated the rules on handling the documents by taking some of them out of the viewing room.  He also took notes which he carried with him when he left.

The facts themselves are not really in dispute.  (Leaving aside the silly “socks” angle.)  Berger admits to having taken the documents and the notes.  He just says taking the documents was inadvertent, which isn’t terribly credible since he was the National Security Adviser under Clinton and has had considerable experience in handling classified documents.

The Justice Department has been investigating the case for a year or so.  But they haven’t brought charges or otherwise settled the case yet.  It’s obvious that Berger won’t be able to get a security clearance again, so he won’t be able to serve as any kind of official adviser to a Kerry administration.  He’s also resigned as an adviser to the Kerry campaign, embarrassing his candidate along the way.

Beyond that, the story gets murky.  Beyond what I’ve just described, there doesn’t seem to be much there there (to rip off Edith Stein’s famous comment about Oakland).  If any harm was done by the taking of the documents, I haven’t heard about it yet.  (Tucker Carlson’s fantasies don’t count.)  Berger’s career is limited in new ways and Kerry’s campaign suffered some embarrassment.

But, given that there is apparently no real dispute about the facts of the case, why hasn’t the Justice Department settled this or brought charges after a year’s investigation?  From what I’ve read, there were multiple witnesses and clear documentation, besides the fact that Berger admits to the violations.

It’s clear that there have been leaks sanctioned at a pretty high level on the Berger case.  Politically-motivated leaks by the Ashcroft Justice Department are nothing new.  As Josh Marshall said, “Given the timing and other context I don't have much doubt this was a politically motivated and malicious leak. It's as dirty as it comes, but also highly predictable.”  And also:

The one thing I'm certain about in this Berger matter is that I really wish the folks investigating his case were investigating the Plame case because if that investigation leaked as much as this one does my life over the last year would have been quite a bit easier.

Ashcroft’s handling of such matters is a direct continuation of the highly-partisan approach to law that we saw with Kenneth Starr’s interminable investigations of Bill Clinton.

A number of observers have called attention to the very different attitude of Republicans in both the administration and in Congress toward this Berger case than in regard to the far more serious cases of Valerie Plame and the leak of signals intelligence to Iran.  Nick Confessore notes this fact witha touch of bitterness:  Another Country Heard From TAPPED 07/22/04.

The story of the story

Apart from the actual legal issues, and the undeniable damage to Sandy Berger’s ability to act as a government official or adviser in the future, what goals are the flood of leaks likely to serve?

There has been considerable speculation that the timing of the initial leak and the many follow-up leaks was meant to distract attention from the 9/11 Commission report.  That may well be part of it.  But the 9/11 Commission report is such a big deal that even our shockingly dysfunctional political press corps can’t avoid giving a great deal of attention to it.

Laura Rozen, citing Swopa at the Needlenose blog, thinks it has more to do with development in the Valerie Plame case, the one involving the felonious outing of Plame as an undercover CIA agent to retaliate against her husband Joe Wilson for daring to criticize Bush’s false claims of evidence for a (non-existent) Iraqi nuclear weapons program.  Rozen says, “Someone appears to be planting just the kinds of stories you would expect to see were the administration to be anticipating indictments in the Plame affair very soon.”

Both of them cite an article in the administration-loyal Washington Times (aka the Moonie Times; Swopa calls it “the Republican house newspaper”) offering an explanation convoluted enough to have been cooked up by an East German Stasi operative: CIA operative named prior to column by Bill Gertz 07/23/04.

Essentially, it says that Plame’s name had been exposed before the column appeared, and therefore the administration operatives that leaked it to that hack Bob Novak to publish to the world didn’t violate the law in what they did.  The Moonie Times argument:

Mrs. Plame's identity as an undercover CIA officer was first disclosed to Russia in the mid-1990s by a Moscow spy, said officials who spoke on the condition of anonymity.

In a second compromise, officials said a more recent inadvertent disclosure resulted in references to Mrs. Plame in confidential documents sent by the CIA to the U.S. Interests Section of the Swiss Embassy in Havana.

The documents were supposed to be sealed from the Cuban government, but intelligence officials said the Cubans read the classified material and learned the secrets contained in them, the officials said. …

However, officials said the disclosure that Mrs. Plame's cover was blown before the news column undermines the prosecution of the government official who might have revealed the name, officials said.

”The law says that to be covered by the act the intelligence community has to take steps to affirmatively protect someone's cover," one official said. "In this case, the CIA failed to do that."

Swopa summarizes that argument this way:

That this argument is based on thoroughly unprovable allegations with no clear news "hook," not to mention being obviously implausible (Cubans secretly breaking into sealed documents show that the CIA is not trying to protect her identity?!), just underscores how unlikely it is to be suddenly showing up in a newspaper. Some Bushite official consciously researched this and handed the information to a reliably friendly reporter at this precise moment in time. Why?

Swopa doesn’t answer the question.  But it sure sounds like a “trial balloon” for an excuse to let the criminals behind the Plame leak walk.

Ashcroft’s Justice Department is pretty much what you would expect if Kenneth Starr was running the place.  This is a continuation of the highly politicized, partisan approach to the law that characterized Starr’s renegade Special Prosecutor’s Office.

The Starr style of justice

Speaking of which, I would highly recommend the new documentary film, The Hunting of the President, based on the book of that title by Joe Conason and Gene Lyons.  It spells out in a compact way how extremely partisan that whole business was, and how supposedly sophisticated reporters as well as alleged upright prosecutors were willing to usethe sleazy fabrications of a bunch of real Arkansas low-life scammers to justify their jihad againstClinton.

Orcinus has a good review of the film up on his blog.  In comparing the film (which he abbreviates as THOTP here) to Fahrenheit 9/11, he writes:

Even more than Moore's film, however, THOTP drives home what is, to me, the most important aspect of the dilemma we face: namely, the fact that the multiple problems we now face -- whose origins, it should be clear, can be readily found in the Clinton madness -- boil down to a malignant and disgracefully dysfunctional media.

What drives the Fahrenheit 9/11 phenomenon (from which THOTP stands to immediately benefit as well), in fact, is the very presence of this dysfunction -- and the reality that a large portion of the population is perfectly aware of it. Both films present important information that should have been part of the national dialogue and which instead has been systematically excluded, suppressed and ignored. (Check out the ridiculous pattern of non-reviews that greeted the publication of THOTP, for instance.) There is in fact a great demand, a real hunger, for this information. Both films help satisfy that hunger -- and feed even more.

THOTP is both stylistically and contextually quite different from Moore's film, and in some ways is an important second voice, because it provides much of the backdrop for the latter. It's not as emotionally involving or as entertaining, but it may be more essential.