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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

A bit more on Berger.

To expand on the post below, all the supposed nefarious motives I've heard for this seem ridiculous on their face. Sen. Rick Santorum (R-PA) says that Berger took information on port security from those documents and gave them to John Kerry so he could use them at a photo op soon after the incident took place last October.

That makes no sense. As someone who runs in those circles, I can tell you that there are at least half a dozen Democratic think-tank homeland security mavens who will happily go on about port security with you until you're ready to strangle them, or even until you do strangle them.

The thought that Kerry needed Sandy Berger to pilfer one of Richard Clarke's after-reports about the millenium terror alerts to get whatever boilerplate he discussed at this particular press conference is truly ridiculous. And Santorum must know it.

Here's the transcript of Berger's lawyer Lanny Breuer on Wolf Blitzer tonight. He makes Berger's case.

(Scroll down to the phrase "Brian Todd, thanks very much for that report" for the beginning of the interview portion.)

I'd be curious to hear what people think after reading that interchange.

In the days ahead I have to imagine that a lot of Democrats -- and not happily -- are going to be asking this question: Why didn't Sandy Berger step aside from his advisory position for John Kerry some time ago?

Set aside all the outstanding questions that will be churned over in the coming days, and consider the following ...

1) At a minimum Berger did something that was quite embarrassing for a man of his standing.

2) No one disputes that there is an FBI investigation and that there has been one for months.

3) Republicans, not to mention Democrats, aren't above a well-timed leak to maximize political damage against their opponents. All the more so since this is virtually the signature of the Ashcroft Justice Department.

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.

I think a lot of Democrats are going to be asking why Berger didn't see this coming down the pike, step aside from his prominent advisory role with the Kerry campaign, and avoid at least the immediate partisan political dimensions of the current predicament almost entirely.

I say it with much less than no pleasure. But I'm wondering. And I don't have a good answer.

From this evening's Nelson Report, here's Chris Nelson <$NoAd$>on the Berger matter ...

Summary: apparent removal of classified documents from the National Archives by Kerry Campaign advisor Sandy Berger is classic "Washington scandal"...friends rush to the defense; enemies issue pious quasi-indictments; everyone tries to measure whether the victim/subject is mortally wounded, or will survive to play in the future. (If so, you'd better watch what you say now...) Quick verdict of the professionals...Berger's lost any chance at Senate-confirmed job in a Kerry Administration (Secretary of State was the presumed desire); timing of the leak was not coincidental (Dem National Convention opens Monday, 9/11 Report due this week). As to whether he's really "guilty", no one knows, perhaps including Berger. One thing is for sure...a political life can change in seconds.

...

1. First, on the scandal de jour, former Clinton National Security Advisor Sandy Berger, lately a high-profile player in Democrat John Kerry's campaign for the presidency, today found himself publicly accused of illegally removing highly classified anti-terrorism documents from the National Archives, while reviewing the materials to prepare for his testimony to the 9/11 Commission.

-- Berger's friends and former colleagues rushed to his defense, but the Kerry Campaign appeared taken by surprise, and merely offered "no comment about an on-going investigation". Republicans could hardly contain their glee, issuing pious remarks about the seriousness of the matter, without wishing to rush to judgment against Berger. In short, a typical Washington scandal, with everyone looking over their shoulder to see how it might affect them.

2. As in any leak, one must always ask who did it, and why. In leaks, the motives can be played either way...sometimes opponents of something think a leak will stop it; other times, proponents leak to discredit opponents, etc., etc. Since the circumstances of Berger's potential discomfiture have apparently been known to a variety of players for several months, we may never know why this story just surfaced now.

-- for what it's worth, the Justice Department denied any involvement in, or political motivation for leaking word of the probe, implying a pure coincidence that it comes days before the Democratic National Convention opens in Boston, and the further coincidence that the 9/11 Commission report is coming this week. (Democrats, of course, darkly hinted that Berger was being thrown out as a diversionary tactic from what is presumed to be an embarrassing report for the Republicans.)

3. If Republicans and Democrats disagreed as to the motive for the Berger leak, one difference between this scandal and the "usual" is that both sides agree on one thing: to the extent that anyone is willing to discuss events "off the record", both friends and enemies agree that any chance Berger had of continuing a public role as a Kerry foreign policy advisor has been eliminated.

-- and for the future? To quote one old Washington hand who happens to be a Dem, "what do you think Republicans would do if Berger's name was submitted to the Senate for Sec State?" For the immediate future, what remains to be determined is whether Berger's embarrassment also becomes Kerry's embarrassment...and the mere fact of the question helps convince many Democrats of the political motivation of the timing of the leak, since Berger has apparently been under investigation by Justice since last October.

4. To show just why Democrats are upset/worried: Republican Rep. Duncan Hunter, chairman of House Armed Services, lost no time in raising a serious charge, while pretending not to. Speaking to Fox News last night, Hunter suggested that Berger may have removed the classified documents to help the Kerry Campaign (since they apparently cover an "after action" report of things Clinton did, successfully, in the war on terrorism).

-- Hunter then went on to say he "accepted" Berger's "protestations and [his] proclaimed innocence and his good faith and [that] it was just a mistake - he was just sloppy. I think we accept that." Plunging home the knife, Hunter concluded, however, that there is a "certain discipline" required to separate politics from public duty, and that "he's obviously violated that discipline."

(Translation: if Kerry's people are "sloppy" with highly classified materials in the war on terrorism, how can Kerry be trusted with the responsibility of protecting the American people in the future? Especially, Hunter implies, if Dems are so reckless as to use classified information for political advantage. Shocking...shocking. Democrats choke in fury on that one, given Atty. Gen. Ashcroft's record since 9/11. Anyhow, that, in a nutshell, gives you the immediate bottom line.)


I think Chris has the dimensions of this about right.

Our Tolstoyan president ...<$NoAd$>

I'm a war president.

George W. Bush
Meet the Press
February 13th, 2004


Nobody wants to be the war president. I want to be the peace president.

George W. Bush
Campaign Speech
July 20th 2004




And for good measure, this from today: "For a while we were marching to war. Now we're marching to peace. ... America is a safer place. Four more years and America will be safe and the world will be more peaceful."

More on the "Kerry is bin Laden's man/President Bush is mine" bumpersticker.

As you know from our post last week, the Louisville Kentucky Republican party was handing out copies of this bumper sticker to all that would have them. Actually, Jack Richardon IV, the head of the local GOP, told me he was a little unclear about whether his organization was distributing them or not. But I can't see why he was so uncertain since, according to today's Courier-Journal, the local paper, it was plastered on the front window of their headquarters and available at the front desk.

In any case, local Congresswoman Anne Northup has now asked the local party organization to take the decal down from the window and stop handing them out. So credit where credit is due.

Barzini reveals himself?

In the Wall Street Journal today, the editors return to the Wilson matter and then let the other shoe drop. "Special Prosecutor Patrick Fitzgerald should fold up his tent," the editors write. This move was anticipated last week when the Journal lamented the Fitzgerald investigation's "especially paralyzing effect on the office of the Vice President."

As it happens, the claim that Wilson's wife recommended him or selected him for the job -- the peg on which the Journal hangs its hat -- is among the weakest leveled against him. Though the authors of the Senate report chose not to include this point, Plame's bosses at the CIA have always said they came up with the idea to send him, not her. Indeed, only yesterday a senior intelligence official confirmed to me that, according to her bosses, Plame "did not initiate" the idea of sending Wilson on the Niger mission. Her bosses came up with the idea, the official explained, and then she agreed to ask him if he'd be willing to undertake it.

More importantly, however, the whole question is legally irrelevant. Even if Plame pulled strings to get the gig for Wilson and had the Agency arrange for him to stay at Niger's most palatial and exclusive hotels, and even if Wilson had lied about it, all of that would leave the legal case enitrely intact. There's no scoring political points exception to the law in question -- not even if you think they're valid political points, not even if they are valid points.

The folks at the Vice President's office who are under scrutiny might -- as Brown, Douglass, Garrison and Phillips once did -- be appealing to the higher law that transcends mere statutes. But we'll see.

The Times says that Fitzgerald is "expected to announce in a matter of weeks whether he will prosecute anyone." And it's not clear to me that he will choose to bring any indictments. Like everyone else, I have no idea. Yet the Vice President's office would clearly like to see the investigation scuttled or at least lay the political groundwork for a defense against possible indictments. We should thank the Journal for showing us where they're going with this.

A bit more on the Berger story.

As far as I can tell, my comments from last night stand. Notes taken from classified documents are themselves classified, unless and until they are cleared as containing no classified information. That at least appears to be the standard procedure.

However, it seems equally clear that the surfacing of this matter is the product of a malicious leak intended to distract attention from the release of the 9/11 commission report.

Consider the timing.

According to this article in the Post, the National Archives began investigating this matter in October and then referred it to the FBI in January. That is, needless to say, at least six months ago. The article also notes that the FBI has yet to interview Berger, which suggests that the investigation has not reached a critical stage, for good or ill, that would have brought it to light now.

The most obvious, and probably the only, explanation of this leak is that it is intended to distract attention from the release of the 9/11 report due later this week. That would be yet another example of this administration's common practice of using the levers of executive power (law enforcement, declassification, etc.) for partisan purposes.

That doesn't mean Berger doesn't have any explaining to do. The two points are not exclusive of each other.

I just noticed this late story off the AP wire that Sandy Berger, Clinton's National Security Advisor, is the focus, in the AP's words, "of a criminal investigation after admitting he removed highly classified terrorism documents from a secure reading room during preparations for the Sept. 11 commission hearings."

"I deeply regret the sloppiness involved," the article quotes Berger telling the AP, "but I had no intention of withholding documents from the commission, and to the contrary, to my knowledge, every document requested by the commission from the Clinton administration was produced."

It's worth reading the whole article to get all the details, limited as they are.

The whole thing seems almost inexplicable. If I understand the article correctly, Berger took with him out of the secure reading room several highly classified documents relating to the 1999 millenium terrorist threats, as well as handwritten notes he took while reviewing those and other documents.

But these aren't original documents, but rather copies -- at least that's what the article says (see paragraphs 3 and 7).

So even if one imagines the most nefarious intentions -- which I'm certainly not inclined to do -- it's hard to imagine what taking copies of such documents would have been meant to accomplish. At the same time, Berger has spent his career in and out of the national security bureaucracy and must know the dos and don'ts of custody of classified materials like the back of his hand. So I don't know what he could have been thinking.

As I said, the whole thing seems almost inexplicable to me.

The key paragraph in the piece seems to be this one ...

Berger and his lawyer said Monday night that he knowingly removed handwritten notes he had taken from classified anti-terrorist documents he reviewed at the National Archives by sticking them in his jacket and pants. He also inadvertently took copies of actual classified documents in a leather portfolio, they said.


The key here of course is what if any distinction there is between the two things.

I've spent so much time over the last several months reporting on a project that has to do with classified materials that I'm embarrassed to say that I don't know just what the rules are for taking notes of such classified documents in secure reading rooms. (Needless to say I've never found myself in such a situation and doubt very much that I ever will.)

I would imagine they are quite strict and that you're not allowed to just take such notes with you except under the most limited of circumstances, if at all. Obviously, if you can write down the contents of classified documents and then take your notes with you then basically you're taking the document itself -- since the issue is not the physical document but its contents. Again, though, I simply don't know.

The article says that "when asked, Berger said he returned some of the classified documents, which he found in his office, and all of the handwritten notes he had taken from the secure room, but said he could not locate two or three copies of the highly classified millennium terror report."

That would seem to imply that he wasn't supposed to have the written notes either, though not definitively.

What this AP story reports is quite limited; and I'm going to reserve judgment until I know more of the facts and the rules governing this particular situation. But on the face of it, it does seem, as I said, inexplicable. And these are the sorts of incidents that, quite apart from criminal prosecution, rightly or wrongly, often end any future possibility of government service.

Late Update: As of late Monday evening, there is now an expanded version of the AP article that clarifies or at least expands on some of the issues noted above.

There's this graf on the notes issue ...

Berger was allowed to take handwritten notes but also knew that taking his own notes out of the secure reading room was a "technical violation of Archive procedures, but it is not all clear to us this represents a violation of the law," Breuer said.


In the more recent version of the article, however, the issue of copies versus originals seems more muddled, which ain't good.

For Turkophiles like TPM, Stephen Kinzer has an article in the New York Review of Books on the Erdogan government and the prospects for contemporary Turkey that you should be sure to read.

Michael Getler, ombudsman of the Washington Post, has a short piece today responding to my criticism of Susan Schmidt's article which appeared on July 10th.

"[I]n general," he writes, "I didn't find the criticism of this story persuasive."

Yet after reading his piece I get the impression that he agrees with at least two of my three points of criticism.

One of those three was Schmidt's claim that Wilson had reported that Iraq had tried to purchase 400 tons of uranium from Niger in 1998. In fact, the Report says it was Iran. The Post ran a correction of that error on Tuesday. And Getler says that error was "not central to the main points" of Schmidt's article -- a characterization that I think is probably a fair one.

A second point was my criticism of Schmidt's discussion of the legal implications of whether or not Wilson's wife recommended him for the mission in question -- an interpretation which comes right out of the mouths of the White House's defenders and is, I believe, demonstrably false. With respect to this, Getler writes that "there was one paragraph of speculation about the possible impact of the report on the administration's case in the [Fitzgerald] investigation that, in my view and the view of critics, should have been left out."

This sounds like at least a tacit agreement.

My third point of criticism was whether Schmidt was right to say that "contrary to Wilson's assertions and even the government's previous statements, the CIA did not tell the White House it had qualms about the reliability of the Africa intelligence that made its way into 16 fateful words in President Bush's January 2003 State of the Union address."

I think this is false since the CIA repeatedly tried to warn the White House off the 'uranium from Africa' story, though the Report alleges that they failed to do so just before the State of the Union address. The Report itself goes into great detail about how the CIA struggled to get the charge removed from the president's 'Cincinnati speech' in October 2002. Getler repeats the same facts, but sees this as confirming Schmidt.

There is one other point in Getler's piece that caught my eye.

In Wilson's letter to the Post, he took Schmidt to task for "uncritically citing the Republican-written Senate Select Committee on Intelligence report." Getler says 'no' it was "a bipartisan report."

Both of them, I think, come up a bit short on this one, but Getler more so. It is a 'bipartisan report'. But on the Wilson-Niger matter it's not unfair to identify this as a Republican document since the Democrats did not agree with the majority's conclusions on this matter. Indeed, as the Republicans themselves (specifically Sens. Roberts, Bond and Hatch) complained in their 'additional views' (p. 442) section, "Despite our hard and successful work to deliver a unanimous report ... there were two issues on which the Republicans and Democrats could not agree: 1) whether the Committee should conclude that former Ambassador Joseph Wilson's public statements were not based on knowledge he actually possessed, and 2) whether the Committee should conclude that it was the former ambassador's wife who recommended him for his trip to Niger."

And one other point -- one not directly relevant to all this back and forth about Niger and Wilson, but an example of how journalism too often works, or, rather, fails to.

In a bandwagon-type column out today in USA Today, Richard Benedetto quotes the Report thusly ...

Second, the Senate report said that Wilson "was specifically recommended for the mission by his wife, a CIA employee, contrary to what he has said publicly."


As we've noted here previously, consistently from day one until today, Plame's bosses at CIA have insisted that the idea to send Wilson was theirs, not hers -- a presumably relevant fact the committee Report fails to mention.

Still, that quotation sounds even more definitive than the Report made out. And in fact it is. Benedetto says he's quoting the Report, but he's actually quoting Schmidt.

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