A Berger and Lots of Fries

The mention of my name around the halls of the U.S. National Archives is not likely to generate a lot of smiles or kind words. Through the years I have written a number of essays and book chapters criticizing certain aspects of what NARA does, most recently just a few months ago in an essay about the reclassification mess in this institution. I am sure that my comments of their role in Sandy Berger’s theft and destruction of classified government records will just be seen one more complaint. I hope that it does not come across this way.

A recent Staff Report of the U.S. House of Representatives Committee on Oversight and Government Reform, Sandy Berger’s Theft of Classified Documents: Unanswered Questions, released January 9, 2007, reports on the former National Security Advisor’s theft and destruction of classified documents that may have impeded the work of the 9/11 Commission. According to this report, and a host of newspaper articles and other news reports, Berger removed classified notes, dumped classified records, and removed and subsequently returned some additional classified records. Ultimately Berger was given two years probation, ordered to perform a hundred hours of community service, fined $50,000, and lost his security clearance for three years. For many, myself included, this seems like a rather light punishment, but it could have been far more lenient. Maybe jurists are taking such records matters more seriously these days, at least those with any connection to matters of national security and the so-called war on terror.

The government report provides an interesting discussion about how former presidential officials get access to classified records, describing in detail how archival databases are used, the nature of search terms employed by NARA staff, and what a “Presidential privilege review” means, determining just what records ought to be considered privileged for whatever reason. The report also provides a comprehensive, step-by-step review of each of Berger’s visits to view these records, ranging from how the retrieval process functions to Berger’s own erratic behavior that eventually made NARA personnel concerned with what was going on. The extent to provide secure facilities for examining such classified records is clearly portrayed, and it is because of such precautions that the extent of Berger’s initial efforts to cover up his actions are revealed. At one point, a document was given a “pick sticker” because it seemed to need to be re-evaluated about its classification status. After Berger had examined the documents, it was noticed that the sticker had been moved from the document and placed on another, making it seem that “Berger was carefully thinking through his document theft, knowing that if he failed to leave the pink-stickered document behind, he would be caught” (p. 25).

This is a report that does not, of course, applaud NARA’s handling of the Berger situation. It indicates that a “control set was not used for the e-mails reviewed by Berger. When the staff suspected Berger had taken e-mail documents, they had to go back and recreate the search process based on the dates of document[s]. . .” (p. 25). Starting on page 31 of this report is a section focusing on NARA’s “lax procedures” in handing classified records, where it “created an environment where Berger easily removed highly classified documents.” Berger was allowed to work in an area that was not authorized for viewing such records, NARA’s law enforcement procedures were out-dated and this problem alone, if it had not existed, “may have allowed for the government to retrieve the material Berger removed” (p. 35). The Archives Inspector General found five times that the “Archives staff erred in facilitating access to classified information in an unauthorized setting” (p. 36), and it also noted that none of staff involved in such problems faced any changes in their “professional responsibilities” (p. 37).

I believe we ought to feel some sympathy for the National Archives in this situation. There are indications that it has moved quickly to rectify some of the problems discussed in the Berger case. It also suggests the powerlessness that NARA often can feel in dealing with the power of the White House, a problem that has plagued this institution for a long time and that is often not addressed by the archival community and its leadership. More importantly, the situation it found itself in is one that any archival program could find itself in, contending with voluminous records and resources stretched too thinly. While there has been some conversation about this case on the Archives list, neither the Society of American Archivists nor the National Security Archive has made any public pronouncements about the case. We need to unite to argue for a stronger, more independent national archives, one that has sufficient