Sandy Berger’s Theft of Classified Documents:

Unanswered Questions

Staff Report

U.S. I-louse of Representatives

p₀th Congress

Committee on Oversight and Government Reform

Tom Davis, Ranking Member

January 9, 2007

Table of Contents

Executive Summary, 3

II. Findings 4

111. Background 6

A. The National Archives 6

B. 9/11 Commission 6

C. Sandy Berger 7

I). Criminal Investigation, Prosecution, and Guilty Plea 8

E. The Committee’s Investigation 9

IV. Berger’s Four Visits 10

A, Designation by President Clinton 10

13. Highly Classified Materials 12

C. First Visit — May 30, 2002 15

D. Second Visit — July 18, 2003 16

E. Third Visit — September 2, 2003 1 8

F. Fourth Visit October 2, 2003 22

0. Berger Is Caught 28

Fl. Berger’s Public Statements 30

V. Lax Procedures at National Archives Created an Environment Where Berger

Easily Removed Flighly Classified Documents 3 1

A. Classified Documents Handled Inappropriately 31

B. After Breach, Law Enforcement Not Engaged Quickly 34

C. Personnel Action 36

D. Archives Substantially Revises Procedures 38

VI. Effects on 9/il Commission’s Work Not Knowable Whether All Documents

Were Produced 40

A. Inspector General and Justice Department Clash Over Notifying 9/11

Commission 40

13. Justice Department Convinced ierger’s 1)ocument Theft Limited to What I-ic

Admitted 50

C. I-Iillman’s Public Statements Are Incomplete and Misleading; 9/11 Commission

May Have Been Deprived of Original Documents 53

1). 9/11 Commission Relies on Assurances by the Justice Department 55

VII. Conclusion 61

2

L ExecutHve Summary

In May 2002 and in the summer and fall of 2003, President Clinton’s former National Security Advisor Sandy Berger visited the National Archives and Records Administration (hereinafter, National Archives or Archives) to review highly classified documents in preparation for being interviewed by a Congressional panel and the 9/11 Commission. In addition to preparing for testimony, Berger was to conduct a Presidential privilege review of documents responsive to official 9/11 Commission requests. The documents were ~‘code word” documents and only a very small number of people had the security clearance to view them — mostly National Security Council officials. It is now known that on these visits Berger unlawfully removed some of the documents he examined. In the Spring of 2005, Berger pleaded guilty to this.

The release of the Archives Inspector General’s report and the further inquiry reflected in this report now reveal the extraordinary lengths to which Berger was willing to go to deliberately compromise national security, apparently for his own convenience. The criminal ease involved documents that Berger was caught removing and ultimately admitted removing. There is no reason to doubt that those documents were -forwarded to the 9/11 Commission for its use. The Justice Department and the Archives apparently accounted for them all and assured the 9/11 Commission that it received them all.

The full extent of I3erger’s document removal, however, is not known, and never can he known. The Justice i)epartment cannot be sure that Berger did not remove original documents for which there were no copies or inventory. On three of i3erger’s four visits to the Archives, he had access to such documents.

During Berger’s visits to the National Archives, he was provided access to three categories of documents: original NSC numbered documents, printed copies of electronic mail messages and attachments, and uncopied, original Staff Member Office Files (SMOFs). NSC numbered documents are briefing and position papers prepared by the staff of the National Security Council. The SMOFs contain the working papers of White I--louse staff members, including Berger and terrorism advisor Richard Clarke. The contents of the SMOFs are not inventoried by the National Archives at the document level. The SMOFs provided to Berger during his first two visits to the National Archives including the personal office files of Richard Clarke contained only original documents.

Consequently, the l)epartment o-f Justice could not assure the 9/11 Commission that it received all responsive documents to which i3erger had access. Additionally, the 9/11 Commission was not informed that I3erger had access to original documents that he could have removed without anyone’s knowledge. Officials from the National Archives, the Office of Inspector General for the National Archives, and the Department of Justice have acknowledged there is absolutely no way to determine if Berger removed any o-f these original documents. Because the Staff Member Office Files are not inventoried at

3

the document level, I3erger could have removed critical documents and no official \vould ever he able to know.

While the Staff Member Office Files provide the greatest opportunity for missing documents, the NSC numbered documents also present a serious problem. The NSC numbered documents are only numbered at the document level, not by page. i3erger could have removed portions of NSC numbered documents and the National Archives officials would never know. I3ecause Berger was provided with so many original documents, there is no way to ever know if the 9/11 Commission received all required materials.

The facts of this case raise some peculiar and disturbing questions about the conduct, and more importantly, the motivations of the former National Security Advisor. For example, Berger admitted to leaving highly classified documents at a construction site near the main National Archives facility in downtown Washington, D.C. where they could have been easily found. Additionally, one o-f the archivists with a very high clearance level (and therefore presumably reliable) who worked on the document production for the 9/11 Commission reported that he saw l3erger hiding some documents in his socks and under his pants. These acts o-f concealment show the lengths to which Berger was willing to deliberately go to compromise national security.

More than previously understood, Berger’s actions portray a disturbing breach of trust and protocol that compromised the nation’s national security. This report examines the specific facts concerning Berger’s four visits to the National Archives, the lax procedures in effect at the Archives that allowed these events to unfold, the effects I3erger’s actions had on the work of the 9/Il Commission, and the actions by the Department of Justice in advising the 9/Il Commission of relevant •facts concerning Berger’s Archives visits.

U. F~nd~ngs

On May 30, 2002, Sandy Berger reviewed original NSC numbered documents and original Sta-ff Member Office Files, including the office files of White I-louse terrorism advisor Richard Clarke, After receiving document requests from the 9/Il Commission in 2003, Archives staff made available the same original document files I3ergcr reviewed in May 2002.

On July 18, 2003, after reviewing original NSC numbered documents and original Staff Member Office Files, Sandy Berger removed the classified notes he took on that visit.

• On September 2, 2003, after reviewing original NSC numbered documents, copies o-f Staff Member Office Files, and copies of e~mail documents, Sandy Berger removed classified documents from the

4

Archives. I-Ic admitted to removing a classified version of the Millennium Alert After Action Review and his classified notes.

® On October 2, 2003, after revie\ving copies of NSC numbered documents, copies of Staff Member Office Files, and copies of e-mail documents, Berger again removed classified documents fi’om the Archives. I--Ic admitted to removing numbered e-mail documents. I3erger also removed the classified notes he took. I3erger admitted he also temporarily left highly classified documents at a construction site where they could have been found by anyone.

On these four occasions, Archives officials allowed Sandy I3erger to review highly classified documents outside of a Sensitive Compartmented Information Facility. On several occasions, B erger deliberately procured the absence of Archives staff so that he could conceal and remove classified documents.

• Failure to engage law enforcement at the appropriate time compromised a proper investigation. Archives staff failed to notify law enforcement officials when there was a reasonable suspicion classified government property had been removed by Berger.

• The Archives Inspector General and Justice Department officials clashed over notifying the 9/11 Commission o-f the extent of I3erger’s document removal and the -fact that I3erger had access to original documents that may have been responsive to Commission document requests. No one told the 9/Il Commission that I3erger had access to original documents.

• There is no basis for concluding i3erger did not remove original documents responsive to 9/11 Commission requests during the May 30, 2002 and July 1 8, 2003 visits to the National Archives. Nevertheless, the Justice I)epartment’s representations to the 9/li Commission left the impression that i3erger’ s document theft was limited to what he admitted to taking.

The public statements of the former chief of the Justice Department’s Public integrity Section, Noel I-Iillman, were incomplete and misleading. Because Berger had access to original documents on May 30, 2002, and July 18, 2003, there is no basis for his statement that “nothing was lost to the public or the process.”

• The 9/11 Commission relied on assurances from the Department of Justice that a -full and complete production was made, and that no original or any other responsive documents were withheld. No one told the 9/11 Commission that Berger had access to original

5

documents. The 9/il Commission was specifically intem’ested in the office files of White I-louse terrorism advisor Richard Clarke. and never was told that Berger had access to Clarke’s original office files on May 30, 2002, and July 1 8, 2003.

ULBackground

A. The National Archives

Established by statute in I 934’, the National Archives and Records Administration is an independent agency charged with maintaining and protecting the records of the Federal Government.²

The retention of Presidential records is governed by the Presidential Records Act (PRA) of 1978 and Executive Order l3233.~ The Act provides that all official Presidential and Vice Presidential records created after January 20, 1981 are the property of the Federal Government and establishes the legal basis for access to the records of Presidents, beginning with the Reagan administration.⁴ Upon the conclusion of a President’s term, the Archivist of the United States assumes responsibility for the custody, control, preservation of and access to the Presidential records?

8. 9/11 Commission

The National Commission on Terrorist Attacks Upon the United States (9/il Commission), was an independent commission created by an act of Congress and signed into law by President George W. I3ush in 2002. The 9/11 Commission was chartered to prepare a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks on the United States, including preparedness for and the immediate response to the attacks.⁶

‘44 U.S.C. §~2i0l-2li8(2000).

2 Nat’l Archives and Records Adniin. [hereinafter NAR.A], Ready Access to Essential Evidence, 2006 Performance and Accountability Rep., (2006), blip ~ summary.p4f.

344 U.S.C. §~ 2201-2207 (2000); Exee. OrderNo. 13233 (2001).

~ ‘i’he Nat’l Archives, Presidential Libraries, http://www.archives.gov/presi dential:

libraries/laws/i 978-aet.html (last visited Jan. 5, 2007).

544 U.S.C. § 2203(0(1).

o The Comm’n on Terrorist Attacks Upon the U.S. [hereinafter The 9/11 Comm’n],

http://www. 9-11 commission.gp,y/pfiout/index .htrn (last visited Jan. 5, 2007).

6

On July 22, 2004, the Commission released its Final Report. The Commission ceased operations on August 21, 2004.~ The documents used and created by the 9/11 Commission are federal records and are maintained by the National Archives.

C. Sandy Bower

During President Clinton’s second term, Samuel R. (Sandy) Berger was Assistant to the President for National Security Affairs, a position commonly known as the National Security Advisor.⁸ Berger served President Clinton as National Security Advisor from March 14, 1997 to January 20, 2001,~

The National Security Advisor is a principal to the National Security Council (NSC), and oversees the NSC staff within the White i-louse.’⁰

The National Security Council is the President’s principal forum for considering national security and -foreign policy matters with his senior national security advisors and cabinet officials. Since its inception under President Truman, the function of the Council has been to advise and assist the President on national security and foreign policies. The Council also serves as the President’s principal arm -for coordinating these policies among various government agencies. ~

I3erger’s misconduct occurred as he was reviewing highly classified documents at the National Archives while preparing to represent President Clinton’s NSC staff before the 9/11 Commission.

~ ‘I’he 9/il Comm’n, bll~ I/www.9-1 leommission.gqv/ (last visited Jan. 5, 2007).

8 NARA, Nat’l Sec. Council Biogm’aphy of Samuel R. Berger,

ipJ,p://cl into 4.nara.gov/WI-l/EOP/NSC/html/bergerhio.html.

9 . . . .

Whmte TI websmte, httpj/wwwwhmtchouse_gov/nse/l’~pjl#sup~jnal~ Appendmx, Assistants to the President for Nat’l Security Affairs, 1953-1997.

‘° White i-I. website, Nat’l Security Council, p~//w~v w,whit ou se.gpy/p~p/ (last visited Jan. 5, 2007).

Id.

7

D. Criminal Investigation, Prosecution, and Guilty Plea

On October 10, 2003, the Inspector General of the National Archives (Archives IG) was advised that Berger removed classified documents from the Archives.’² After a

preliminary investigation, on October 1 5, 2003 the Archives tG referred the matter to the Department of Justice for criminal investigation.’³ The Department accepted the criminal referral amid requested the Archives IC) ten’mporarily suspend its internal investigation pending the erinunal investigation and prosecution of I3erger.’⁴ On April 14, 2004, Justice Department officials advised the Archives IG’s office it could resume its investigation with specific linutations on the witnesses with which the IG was permitted to speak.¹⁵ On April 1, 2005, Berger pleaded guilty to one misdemeanor count o-f Unauthorized Removal and Retention of Classified Documents. in violation of 18 U.S.C.

§ 1924(a).’°

On September 8, 2005, Magistrate Judge Deborah A. Robinson sentenced Berger to two years probation, 100 hours of community service, a $50,000 fine, and revoked his security clearance for three years.’⁷ Judge Robinson’s sentence was much more costly to Berger than that recommended by the Department of Justice. ‘~ The Justice Department initially had proposed a -fine of$l0,000*’ Judge Robinson stated, “The court finds the fine is inadequate because it doesn’t reflect the seriousness of the offense.”²°

2 Rep. o-f Investigations, Office of Inspector Gen. [hereinafter 01(1], Office of Investigations, NARA, Case No.: 04-001 -GC (Apr., 2005), at i 5 [hereinafter iG Report].

‘³M.

“ Id.

“Id.

‘° Factual Basis for Plea at ¶3, US & Samuel R. Berger, No. CR-OS-U 175M-01 (D.D.C. Apr. 1, 2005) [hereinafter Berger, Factual Ilasis -for Plea].

‘~ Carol I). Leonnig, Berger Is Fined For Smugg7ing Cla.rs/fzed Papers, WAsH. PosT, Sept. 9, 2005, at A7.

‘~ Jerry Seper, Berger Fined Phi Taking Papers; fudge Boosts Cost Ta $50,000, WAsm-,. TIMES, Sept. 9,2005, at Al.

‘~ Id.

²⁰1d.

8

E The Committee’à Investigation

In August 2004, pursuant to the Comnmnittee’s jurisdietiomial authority over the National Archives, it commenced ami investigation into allegations that former National Security Advisor Sandy Berger improperly removed highly classified documents from the Areluves.²’ The unauthorized removal of such documents raised serious questions about the procedures at the Archives for sa-feguarding these documents and specific quesfions as to whether the 9/11 Commission received all documents responsive to its document requests.

After consultation with the Department of Justice and the Archives lG’s office, the Committee’s investigation was held in abeyance while the Justice I)epartment pursued erimninal charges, and to allow an internal investigation by the 1G. The IC) completed work in November 2005 and issued a Report of Investigation. Following the Archives IG Report, the Committee’s investigation remained in abeyance as the agency considered personnel action with respect to the relevant employees. The internal personnel review, actions, and subsequent appeals continued into October 2006. At the conclusion of these personnel inquiries in October 2006, the Committee resumed its investigation. Around the same time, on October ii, 2006, then Committee Chairman Tom Davis received a letter from 10 members of Congress, including then I-louse Armed Services Committee Chairman Duncan Hunter and Judiciary Committee Chainnan F. James Sensenbrenner, Jr., asking Chairman Davis to further investigate the Berger matter.²²

Interviews were conducted with officials from the National Archives, the Office of Inspector General for the Natiomial Archives, the 9/11 Commission, the Department of Justice, and the Office o-f Inspector General for the Department of Justice. Noel 1-lillman, a former Justice Department official, declined to be interviewed. The Committee requested an interview with Sandy I3erger. Through his lawyer, Lanny Breuer, Berger declined to he interviewed.

21 Letter fi’om Tom Davis, Chairman, I-i. Comnm. on Gov’t Reform hereinafter GoUt

Reform Comm.], to John W. Carlin, Archivist of the U.S., NARA (August 5, 2004) (on

file with Gov’t Reform Comm.); The Committee’s jurisdictional authority over the

National Archives is contained in Rule X(h)(7) o-f the Rules of the 1-louse of

Representatives, 109th Cong. (2005).

22 Letter from Reps. John L.. Mica, Dan Burton, Daniel E. Lungren, Mark E. Soudem’, Pat-rick T. Mel-lenry, F. James Sensenbrenner, Lynn A. Westmoreland, John J. Duncan, Jr., Cum’t Weldon, and Duncan Hunter to Tom Davis, Chairman, Gov’t Reform Comm. (October 11, 2006) (on file with Gov’t Reform Comm.).

9

DV. Berger~s Four VDsVts

A. Designation by President Clinton

On April 12, 2002, President Clinton designated I3erger as his representative to review NSC documents amid prepare testimony for the Joint Intelligence Committee (Grahamn-Goss Comnmission) regarding its inquiry into Osama bin Laderm, Al Qaeda, and other terrorism-related matters.²³ That designation led to i3erger’s involvement as a Clinton administration re₁m’esentative in reviewing documents responsive to the 9/11 Commission’s requests.²

Pursuamit to the Presidermtial Records Act, the 9/11 Commission’s document requests relating to the Clinton administration were coordinated through the incumbent Executive Office of the President, the equity holder of the NSC documents.²⁵ For the Clinton years, numbered document requests were made to the Executive Office of the President, identified as numbered EOP requests, such as EOP I, EOP 2 and I/OP 3. In responding to the 9/11 Commission requests, officials from the National Archives’ staff reviewed the Presidential records for responsive documents.²°

While documents contained in the Staff Memiiber Office Files were uninventoried originals, the NSC numbered documnents were inventoried at the document level and organized in an archival database. NSC documents from the Clinton administration were transferred to the National Am’chives accompanied with an electronic records management system which serves as a basic index to the eollectiomi.²⁷ As a result, each document was givemi a seven—digit identifying number.²⁸ The document summary from the electronic records mamiagement system was used to locate the original version of the NSC doeumemit.²⁹

23 IG Report at 4.

²⁴1d at3.

25 Id at 4.

27 Memorandum of Interview by StaffofOIG, NARA, with Official A, NARA, in Coil.

Park, Md. (May 25, 2005), at 3 [hereinafter Official A Interview].; Memorandum of

Interview by Staff of OIG, with Official A, NARA, Official 13, NARA, and Official C,

NARA, Archives I, Wash., I).C. (May 3 1 -— June 2, 2005), at 2 [hereinafter Joint Staff

Interview].

28 Official A Interview at 3; Joint Staff Interview at 2.

29 Official A Interview at 3.

10

Archives staff reviewed the EOP document requests amid established a list of search terms to identify all m’esponsive documents -for Berger to review.³⁰ Relevamit doeumnemits also were suggested by the incumbent administration’s NSC.³’ After culling all the potentially respomisive documnents, the documiiemits were further reviewed by Archives staff for a final determination of responsiveness.”² After the universe of potem’mtially responsive doeumem’mts was identified, representatives from the Climiton administration were provided access to the documiients --- originals in mamiy eases -for a Presidemitial privilege review.³³

The representatives for the Clinton admninistration were Sandy Berger and former Deputy National Security Advisor Nancy Soderberg.³⁴ After these individuals determined if army responsive document could be withheld omi the basis that it a was privileged presidemitial communication, the National Archives forwarded the respomisive docuniemits to the incumbent NSC for final review. They were then submitted to the 9/1 1 Comnmissiomi.³⁵

Sandy i3erger visited the National Archives to review Presidential m’eeords on four oecasiomis. The first visit, May 30, 2002, was in advance of his testimony be-fore the Graham-Goss Commission. The subsequent three visits related to the 9/Il Commission documnent production, and in preparation for interviews with Commission staff and public testimony before the Comnmnission.³⁶ The three 9/11 Commission-related visits occurred on July 18, September 2, and October 2, 2003.~~

The majority of the materials I3erger reviewed were highly classified Sensitive Cornpartniermted Information and Special Access Program documents.³⁸

30 Id

~‘ Joint Staff Interview at 5.

at 4-6.

~ IG Report at 3-4; Joint Staff Interview at 6; Memorandum of Interview by Staff o-f 01G. with Semuor Official 1, NARA, in Wash., I).C. (Sept. 7-8, 2004), at 4 [hereinafter Senior Official 1 Interview I].

~“ IG Repom’t at 3-4; Senior Official 1 Interview I at 4.

~ IG Report at 4; Senior Official 1 Interview I at 4.

36 Memorandumn of Intem’view by Staff of OIG, with Samuel R. I3erger, -formner Nat’l

Security Advisor to President Williamn J. Clinton, in Wash., I).C. (July 8, 2005), at 2

[hereimiafter Berger Interview].

~“ Berger, Factual Basis for Plea.

38 Official A interview at 2.

11

B. Highly Classified Materials

Dum’imig the relevant period, and before to the estahlishmemit of the positiomi of the

Director ofNatiormal Imitelligemice imi 2005, the Director of Central Imitelligence had the

authority -for the establishment of intelligence policies for agencies such as the National

Archives. These policies were formalized through Director of Central Imitelligenee

Directives (DCIDs).³⁹ Unless rescinded or superseded by the National Intelligence

Director through Intelligence Community Directives, DCIDs remaimi imi force.⁴°

Sensitive Compartmented Imiformation (SCI) “is classified information concerning or derived from intelligence sources, niethods, or analytical processes, which is required to he handled within formal access control systems established by the Director of Cermtral Intelligence””

SCI niaterial mnust be stored within an accredited Sensitive Conipartmented lnformiiation Facility (SCIF).⁴² The Director of Central intelligence is charged with aecrediting SCIFs for executive hramieh departments amid agencies outside the intelligence eomnmunity, such as, the National Archives.⁴³ SCI material niust be reviewed, processed, hamidled, and discussed in an accredited SCIF.⁴⁴

Special Access Program (SAP) materials relate to any program which imposes mieed-to-know or access controls beyond those normnally requim’ed for access to Confidential, Secret, or Top Secret irmformnation.⁴⁵ SAPs am’e established imi circumstances where normal managememit and safeguarding procedures are not sufficient to limnit need-to-know or access, and the number of persomis who need access will be reasonably small amid commensurate with the objective of providing extra protection for the informnation

³⁹Nat’l Security Act of 1947, 50 U.S.C. §~ 40 1-442 (1947); Exee. Order No. 12333

(1981); Exec. OrderNo, 12958 (1995).

40 Office of the Dir. of Nat’l Intelligence, Intelligence Cmty Policy Memorandum, No.

2006-100-1, at 3 (2006).

~‘ Dir. of Cemit. Imitelligence Directive [hereimia-fter DCID] 1/19, Sec. Policy--for Sensitive Comnpartmemited Info. amid Sec. Policy Mammal, [hereinafter DCID 1/19] at I . 1. 18 (Mar. 1, t995); Exec. Order No. 12333 (1981); Fxec. Order No. 12958 (1995).

42 DCI1) 1/19 at 3.0; Fxec. Order No. 12333 (1981); Exec. Order No. 12958 (1995).

~ DCID 1/19 at 3.2.

~ DCID 6/9, Physical Sec. Standards for Sensitive Compartmented Info. Facilities, at

2.3.2 (Nov. 18, 2002).

~ Fxec. Order No. 12958 (1995); See also, Army Regulation 380-381, Special Access Programns and Sensitive Activities.

12

imivolved.^4t’ Special Access Progranis are assigned a classified code word, or an unclassified nickname, or both.⁴⁷ To be cleared into a SAP program, an individual has to hold a minimum o-f four SCI clearances.⁴⁸

At the Natiomial Archives, the procedures for safeguam’ding amid handling classified informnation am’e contained imi the Areluves’ Informatiomi Security mnamiual, knowmi with the agemicy, as the “Red Book.”⁴⁹ The Red Book, last updated in 1989, is supplemnented from timne to timne with “Imiterimn Guidamice” mnenioranda fromn Archives officials.⁵°

At the comiclusion of the Climiton presidemicy, the admninistratiomi’s records were transferred to the National Archives amid placed under t-he supervision of the Archuves staff ~‘ The Clinton records are stored in both Little Rock, Arkansas at the William J. Clinton Presidential Library, and in Washimigton, D.C. at the National Archives main facility.⁵² The mnaterials stored in Washington contain the Clinton adniinistm’ation’s classified intelligence -files, specifically 153 boxes, designated as the “W” intelligence flIes.⁵³ The W flIes included Sensitive Compartmented Information (SCI) and National Security Council-controlled Special Access Program (SAP) mnaterials?⁴ According to the Archives IG’s interview memnoramidumn, Senior Official ~ “eomiiniem’mted all itemns

46 Exec. Order No. 12958 (1995); See also, Army Regulation 380-381, Special Access Programns amid Sensitive Activities.

~ Exee. OrderNo. 12958 (1995); See also, Army Regulation 380-381, Special Access Programns and Semisitive Activities.

48 Senior Official 1 Interview 1 at 13.

~ Info. See. Manual 202 (1989) at ¶12, 5 [hereinafter Red Book].

⁵⁰See, e.g., Lewis J. Bellardo. Deputy Archivist of the U.S. and Chief of Staff NARA, Interimn Guidance 1600-5, Access to Materials Containing Classified Imifo. in NARA Research Rooms by Non-Govemnniemital Persomis (Mar. 3 1, 2004).

SI

TO Report at 3.

52 Id

~ During timnes relevamit to the Berger mnatter, the Archives had possession of 153 boxes.

An additional box was added after the last Bergem~ visit on Oct. 2, 2003; See Official A

Interview at 2; Joint Staff Interview at 1.

~ Official A Interview at 2.

~ The miames of National Archives employees involved with this matter have been

withheld for privacy considerations.

13

revmeived for the 1/OP reqmmests were considered to eomitaimi some clocumemitatiomi classified at the SAP level.”⁶

The mnateriah comitaimied imi the 1 53 boxes imicluded National Security Council (NSC) numbered doeumnents and Staff Member Office Files (SMOFs).⁵⁷

The National Security Courmeil miumbered docunients have a cover sheet with a

elassificatiomi stamp.⁵⁸ The numbering scheme reflects the year the document was prepared, the sensitivity level, and a sequential numerical identifier. ~ NSC numbered doemmmnents come in various formns, some with attachimnemits. ‘fhese documnemits do miot contain page nunibers and are not inventoried by Archives staff 60 Accordingly, if attachments or specific pages within a NSC numbered document were remnoved hut the base document amid cover page remnained, Archives staff would have no way to know that these portions were missing.⁶’

Staff Member Office Files (SMOFs) contaimi the papers of individual White I-louse staff 62 SMOFs include a variety of papers, such as, draft NSC numbered doeumnents, mnemos, c-mails, amid handwritten notes, amnong other items.⁶³ These files are miot imiventoried by the Archives. Rather, there is only a log of what -folders exist. Consequently, had Berger m’enioved papers from a SMOF, it would be almost impossible for the Archives staff to kmiow.

At the Archives, only four sta-ff members had the requisite security clearances to handle and view the SAP W files.⁶⁴ Sandy Berger was the only approved person from the Clinton admninistration with the required clearances to review the files. I3erger’s former Deputy Narmey Soderherg was cleared to view some SCI material, amid Steven

56 Senior Official I Interview I at 4.

~ Joint Staff Imiterview at 1.

‘⁸Idat2.

~o) Id

60

61 Id

62

63 Id

64 IG Report at 4.

14

Naplin, a former staffer to T3erger at the NSC, was cleared to the lowem’ top secret

65

clearance level.

C. First Visit May 30, 2002

FINDING: On May 30, 2002, Sandy Berger reviewed original NSC ii unthered documents and original Staff Member office Files, including the office files of White House terrorL~n, advisor Richard Clarke. After receiving document requests from the 9/li Commission in 2003, Archives stqff ‘nude available tire sante original document files Berger reviewed in May 2002.

Berger camne to the National Archives on May 30, 2002 to review docunients in preparation for his testimnony before the Graham-Goss Conunission, a Congressional panel eoniprised of mnembers of the I-louse and Senate intelligence eomnnttees, charged with lookimig into the 9/11 term’orist attacks.⁶⁶

On that visit, Berger reviewed matem’ials in Senior Official 1 ‘s office at the main National Archives facility.⁶⁷ Senior Official 1 prepared the doeumnents -for Berger’s review and also supervised Berger during the review.⁶⁸ According to Senior Official 1, I3emger reviewed three boxes of NSC W files, and lie exaniined original NSC miunibered documents and original Staff Member Office Files.⁶⁹ ‘The Staff Member Office Files Bergem’ reviewed comitained original docuniem’mts.

According to the Archives staff, on that visit, i3erger was especially interested in White F-Iommse terrorismu advisor Richard Clarke’s personal office files.⁷⁰ Clarke’s -files

65 Senior Official 1 Report, Special Access Visits of Samuel Bemger, a Designated Agent of President Clintomi’s at NARA’s [Staff] -for Reviewing Materials Deemed Responsive to ‘Two White I-I. Requests for Access to the Comnm’n on Terrorismn, [hereina-fter Senior Official 1 Report] (Oct. 24, 2003), at 1, 4; Official A Interview at 2.

66 Thomas h--I. Keami & Lee H. Hamnihton, Without Precedent: The Inside Story of the 9/Il

Comm’mi at 16 (2006) [hiereimiafter Kean & 1-Tamniltomi].

67 Senior Official 1 Report at 2; IG Report at 4.

68 Senior Official 1 Report at 2.

69 Id According to Semiior Official I ‘s staff however, iLerger review-ed five boxes n-f materials. The Archives TO reported the staff supplied I3erger with one box of NSC

nunibered documnents and four boxes of Staff Member Office Files. Joint Staff Interview at 3.

70 Id.

15

were contained in box W-049.⁷’ The mnaterials from this visit were amnong the first documents identified by Archives sta-ff as responsive to 9/Il Commnission requests.¹² Except for hunch, i3erger spent the entim’e day at the Archives.⁷³ Dum-ing the document m’eview, T3erger took handwrittemi notes.⁷’¹ Pursuant to conditions of reviewing classified documnents, Berger’s notes wem’e to be left behind, and forwarded to the NSC for elassifieation.^7~ l3erger claimed that he comnphied with these rules on May 30 when lie left notes whueh were later forwarded by Archives staff to NSC for classification.⁷⁶ Following classification, the notes were returned to the Archives.⁷⁷

D. Second Visit ~- July 18, 2003

FINDING: On July i8, 2003, ~fler reviewing original NSC numbered documents and original Staff Member Office Files, Sandy Berger removed the class-Wed notes he took on that visit

According to Senior Official 1, l3erger visited the National Archives orm July 1 8, 2003 to review five boxes o-f documents responsive to the EOP 2 request from the 9/Il Comnmnission.⁷⁸ The staff intem’view notes prepared by the Archives IG state that Berger was only provided four boxes; three boxes o-f Staff Member Office Files, and one box eontainim-mg NSC nunibered documnents.⁷⁹ ‘These mnateriabs were reviewed in Senior Official l’s office.⁸° According to the Archives IG report, during that visit, T3erger reviewed original NSC numnbered documnents, and original Staff Memnber Office Files.⁸’ According to Senior Official 1, for a large part of that visit, Senior Official I sat at a table with Berger reviewing each item for relevancy.⁸² In her report, Senior Official I m’aised

⁷Id

72 Idat 4.

~ Senior Official 1 Repom’t at 2.

‘~ Id

~ Id

76 Id

⁷⁷Id

78 Id at 3; Official A Interview at 3.

~ Joint Staff Interview at 4. 80 Senior Official 1 Report at 3.

sm₁₀ Report at 5.

82 Senior Official 1 Report at 3.

16

some issmmes with the mnanmier in wInch I3erger reviewed the docmmments on the July 1 8 visit.⁸³ “I did not like the way Mr. ilerger arehivally handled the records, ie (sic) sometimes lie was not clear as to where to refile a tabbed item; Sc) as the day comitinued, 1 checked what he had been through to make sum’e the folders amid docmmmnents were imi good order.”⁸⁴ She stated, “Mr. Berger did voice on this visit that he would prefer to see the itemns in chromiologieal order if that was at all possibbe.”^8~

Senior Offieiah 1 told the Archives 10 that Berger believed he was rushed and indicated sonic disgust with the burden and responsibility of conducting the document review.⁸⁶

According to an account of his interview prepared by Archives 10 investigators, T3erger was advised by Senior Official I that all notes lie took during his document review were to be retained by the Archives.⁸⁷ Berger, however, admittedly removed his hamidwritten notes omi thm’ee of lus -four visits to the Archives.⁸⁸

According to the Archives 10’s interview report, i3erger realized during his doeumnent review that he needed to remove his notes from the Archives.⁸⁹ The report stated: “I-Ic realized he was miot going to be able to reconstruct in detail all the documents he had reviewed, so he needed to take his notes with him, about ten to twenty pages.”⁹⁰ The Archives IG’s imiterview notes further state:

At the end of the day, Mm’. l3erger tn-folded his notes and put them in his suit pocket. Tie took the opportunity to do this when [Senior Official I] was out of lien office due to himn being omi a private phone call. Mr. Bem’ger said he did miot recall being hesitamit to remove Ins suit jaclcet cburirmg thus visit. Flowever, at sonic poirmt, him not removim’mg his jacket could have been related to the fact he placed the notes in his jacket. Mr. Berger knew he had to leave sonic notes behind so it would not be obvious he removed notes.

83 Id

84 Id.

85 Id

86 Semuor Official I Interview I at 5.

87 I3ergem’ Imiterview at 2.

⁸⁸1d at4,5,7.

⁸⁹1d at3.

90 Id

17

Tie had been making miotes amid if lie did not heave any behind it would have been noticeable.

The Areluves IC investigators’ miotes state that Bergen was surprised to learn that lie left only two pages of hiandwrittemi nmotes.⁹m Bergen reportedly told the 10 inmvestigators “some notes were better than none.”⁹²

E. Third Visit September 2, 2003

FINI)ING: On September 2, 2003, after reviewing original NSC numbered documents, copies of Staff Menther Office Files, and copies of email documents, Sandy Berger renwved classified documents from time Archives. He admitted to removing a class Wed veicion of the Millennium Alert Afier Action Review and his class ified notes.

To review documents responsive to 1/OP 3, Bergen visited the Archives on

September 2, 2003. ~ For that visit, Archives staff photocopied Staff Member Office

File materials and placed themn in chm’onohogical order to satisfy Bergen’s request fromu the

July 2003 visit.⁹⁴

Bergen reviewed thus material, in addition to original NSC numbered documnents, in Senion Official 1 ‘s office at the maimi Anchuves building.⁹⁵ The Archives 10 reported that Aneluves staff pnovided l3enger three folders containimig materials fi’om Staff Memnber Office Files, one nedwehh containing NSC numbered documents, and printed e-mnails deenied responsive to 11/OP 3~96 During that visit, aceondimig to Senior Official 1, Benger “was difficult to deal with including demanding that I leave my office on several occasions so that he could mnake on take private phomie calls.” ~

~‘ Id. at4.

92 Id.

~ Semuon Ollicial 1 Repom’t at 4.

~ fri at 3-4.

~ Id. at 4.

96 Joint Staff Interview at 6.

~ Senior Official 1 Report at 4.

18

One document reviewed by Berger on September 2 was in response to BOP ~ Shortly after Berger’s July 18 visit, staff from the Clinton Library faxed a document to the Archives (hereinafter “Little Rock Fax”), after discovering code-worded classified materials were stored in Little RockY⁹ Senior Official I advised staff in Little Rock that the code worded document was to be stored in Washington at the Archives.¹⁰⁰ The fax was transmitted over a secure telephone unit (Sit) in accordance with relevant procedures)°’ After reviewing the Little Rock Fax in July, Senior Official I determined it was to be reviewed by Berger on his next visit.’°² That occurred on the September 2 visit.’⁰³ The Little Rock Fax later proved to be one of the documents removed by Berger.’°⁴

The Little Rock Fax was a version of the Millennium Alert After Action Review drafted by White House terrorism advisor Richard Clarke.’°⁵ Following the arrest of Ahmed Ressam, who had planned acts of terrorism at Los Angeles International Afrport on December 31, 1999.’°’ Berger had asked Clarke to prepare an after-action review to identifr national vulnerabilities.’°⁷ In his March 24, 2004 public testimony to the 9/Il Commission, Berger said he had ordered the review, and Clarke’s report contained 29 recommendations, most related to funding specific initiatives.’⁰’ Clarke’s report, for example, led President Clinton to request $300 million in funding from Congress for domestic security programs.¹⁰⁹

~‘Idat1O.

⁰⁹1d

~ou Id

‘°⁵Berger Interview at 5.

‘°⁶The 9/Il Comm’n, Final Rep. of the Nat’l Comm’n on Terrorist Attacks Upon the U.S. [hereinafter The 9/Il Report] 176-79(2004).

‘°⁷Berger Interview at 5.

‘°‘ Susan Schmidt and Dan Eggen, FBI Probes Berger, WASH. PosT, July 20, 2004, at A2.

19

The Archives IC imivestigators recounted what Bergen told them about removJng the Little Rock Fax:

Mr. Bergen took the first opportunity when [Senior Official 1] was out of her office to remove the documemit. He most likely put it in his jacket pocket, after folding it, hut he does not have a precise recollection of where he put die document. It is perceivable he put it imi his pamits pocket. it was also possible he placed it in his portfolio amid took it out. The document was twelve to thirteen pages.^tm 0

A peculiar incidemit occurred durimig the Septemiiber 2 visit, A membem’ of the Senior Official l’s staff— one of the four staff members with the required security

clearances to handle the W files — reported suspicious activity by Benger to Senior Official 1.11! In an e-niailto Senior Official 1, this staff member wrote:

Okay, I know this is odd. He walked out the door in front of rue and into the hallway. The doom’ closed. Shortly after it closed, I proceeded to go get him a Diet Coke. When I opened the door and started down the hall, he was stooped oven night outside the doorway. I-Ic was fiddling with something white which looked to be a piece of paper on multiple pieces of paper. It appeared to be rolled around lus amikhe amid undermieath lus pant leg, with a portion of the paper sticking out undenneath.

I-Ic turned his head toward my direction as I went by him. We did not make eye contact.

I can’t be 100 percent sure of what I saw because it happened so quickly. But there was clearly something there more than his pants and socks.’’²

In his interview with the Archives IC, Official A’s account is explaimied as follows:

[Official A]”s office is in the next suite from [Senior Official fl’s.

IlSenion Official 1] stepped out of hei’ office asked (sic) [Official A] to buy hen and Mn. Bengen a diet coke (sic). [Official A] got up and headed towards the reception area. Mn. Bergen stepped out of [Senior Official l]’s office and out of the suite. [Official A] came

110 Bergen Interview at 5.

0 Senior Official 1 Report at 4.

112 E-mail from Official A, NARA to Senior Official 1, NARA (Sept. 2,2003,5:58 p.m. EST) (on file with Gov’t Refonmii Comm.).

20

out of the suite and had to side step I\4r. Berger so he would not ron into hini. Mn. [Official A] noticed the (sic) Mr. Bengen was fiddlimig with soniethimig anoumid his left anlcle, between his sock and lus pant leg. It could have been paper. Mn. I3erger was bemit over on crouched down, possibly on one knee. His pant leg was pulled up around lus calf area. ‘I-he white material extended beyond the hem of Mn. Berger’s pant leg. [Official A] said that he could see Mr. Bergen’s sock below, and underneath, the white material. ‘fhe white niatem’ial was around Mn. i3ergen’s sock, not imi

it. It was ami odd place to see something white oii someone. The white material had more of ami appearance of paper than fabric. [Official A] was 100 percent sure the white material was not Mn. Bergen’s skimi. It all happened very quickly.’

In her nepont, Senior Official 1 stated, “1 was concerned by what [Official A] told me.~tm 14 She speculated that Bergen may have been suffering from a health problem, possibly phlebitis.’ 1) Those suffering from phlebitis sometimes don prescniptiomi leg compression stockings.

Although Bergen reviewed copies of c-mails durimig the Septeniben 2 visit, one member of the Archives staff explained to the Archives IC that had Bergen remnoved copies of the c-mails, it would be very difficult to re-locate on ne-create the e-mail because of the labor imitensive process of identifying the responsive e-mail doeuments.mmo In response to the 9/li Commission EOP document requests, Archives staff searched the electronically stoned c-mails for a list of pre-identified search terms or key words.’’⁷ Omice ami e-mail was identified as potentially m’esponsive by the staff, a simigle print was niade and passed on to Senior Official 1. She provided it to Bergen. 8 Since no other print-outs were niade, if ami e-mnail was removed from the document collection, Berger could have prevented the 9/li Commission from having access to it.’ tm9

13 Official A Interview at 4-5.

~ Senior Official I Report at 4.

5 Ic!

16 Joint Staff Interview at 7.

1 7 Id

‘‘⁸1d.

“⁹1d.

21

F, Fourth Visit October 2, 2003

FINIMNG: On October 2, 2003, after reviewing copies of NSC numbered documents, copies of Staff Member Office Files, and copies of email documents, Berger agazn removed classWed documents from the Archives. He admitted to removin” numbered e—mail documents. Berger also removed the class j/led notes he took. Berger adnutted lie also temporarily lefi high/p class?fled documents at a construction site where they could have been found by anyone.

Bergen visited the Archives on October 2, 2003 to eomnplete the review of documents nespomisive to FOP 3. ‘The document review also occurred in Senior Official l’s ~ On that date, Bergen arrived at 11:30 a.m. and depantedat 7p.m., without taking a lunch ~ Because of the eomicerns raised by Official A’s e-mail during the Septemnber 2 visit, Berger was only provided with copies of NSC numbered documents, copies of Staff Memnber Office Files, print-out copies of c-mails, copies of Steven Naplan’s notes, and a document identified by Naplan as one that Bergen needed to exanune before it was produced.’²² In total, on October 2, Bergen reviewed one box of email documents and one box eontaiuimig the NSC numbered doeumnents and SMOF materials. 123 These documents were reviewed by Bergen one redwell at a time.’²⁴

Senior Official 1 and her staff took the additional step of numbering each document that was reviewed by ~ Senior Official 1 penciled a numbem’ on the reverse side of each document.’²⁶ Whemi Bergen left Senior Official l’s office to visit the men’s room, Senior Official I examnined the documnents he had reviewed and verified that no numbered docunicmits were missing.’²⁷ The Am’ehives IC reported that Official A of Senior Official l’s staff ohsem’ved what lie considered “agitated” behavior by Bergen.’²⁸

~20 Senior Official 1 Repont at 5.

121 Id at 5-6.

122 Id at 5; Official A Intenvie\v at 6.

m23 Joint Staff Interview at 7.

24 Official A Interview at 6.

25 Senior Official 1 Report at 5.

‘²⁶Id.

27 Id.

28 Official A Interview at 7.

22

The Archives iC’s imitenview notes of Official A stated, “Mn. i3ergen visited the bathnoomn more frequently than lie had omi previous vislts. Especially comisidening that he did not

have much to dm’ink.”²⁹ The interview notes prepared following Bergen’s interview by the Archives IC stated that he acknowledged visiting the restroom every 30 minutes as a general pnaetice. 130

During omie of Bengem”s afternoon restroom visits, Ancluves staff detenmnimied that an e-mail was mnissing. ~‘ After confenrimig \vith lien staff, Senior Official I had anothem’ copy printed and placed in with the document set Bergen was in the process of

reviewing.’³² At the time, Senior Official 1 and her staff concluded that it was possible that there was a numnbening error, and no document nuniber 217 even existed.’³³ Her

report stated:

They [hen staff] gave inc the e-mail, which wene (sic) number 21 7. I brought it in to Benger and stated that apparently whe,i we had provided e-mail this number had been skipped, that we had a way of controlling the c—mails amid that we had noticed that this number was absent fi’omn what he had returned. Bergen looked at the e-mail and said he was sure he had seen this e-mail and that it must be included already. I-Ic asked me if I did not remember seeing it? I said that I had knew I had seemi similar information, but that this unique e-mnail numnben was missing, that the archives considers each separate e-mail a unique record unless it is totally duplicative in its infonniation, and that he need (sic) to look at tlus e-mnail because we needed to provide it as a separate document. About S minutes later, Bergen said he was sorry but that had (sic) to muake a private phone call and demanded that I leave the office. Reluctantly, I did leave, but checked [a colleague’s] phone which is night outside of mny office and noticed that no phone convem’sation was going on. I also ncmnemnbem’ed at the beginning of the day that I3enger had said that his cell phone was not workimig. So I immediately returned to my office at which point I almost nami into Bergen who was going downm to the hathroomn again. i-Ic had just been a few muimiutes ago.’³⁴

~29

130 Bergen Interview at 2.

‘~‘ Senior Official 1 Report at 6.

‘³²1d

‘³³Id

~ Id.

23

On October 3, Senior Official 1 and hen staff examined the docunients Benger reviewed. ~ Senior Official l’s staff reported that three numbered c-mails wene niissing, including the documemit numbered 217.136 Other muissimi~ numbens wem’e ISO and 323.’~~ The staff themi recreated the e-niaihs that were missing.’³⁸ Accordimig to Semiior Official I, they were all copies on drafts of the same lughly classified Millennium Alert After Action Report.’³⁹ The omily difference amuong the niissing documents were e-mail ~ The missing documents were also the same base docunient (copies on drafts) as the Little Rock Fax,’⁴’ Document number ISO was an e-mail with no contemit, just a subject line, and the attached after-action i.e~ortM² Document miumbcr 217 conmtained three lines of email text and the attachment,’⁴ Document number 323, contaimied three paragnaphs of emuail text and the attached report.’⁴⁴

Document number 1 50 was also mistakenly reviewed by Steve Naplan when lie was reviewing top secret documemits.’~ ‘I-he SCI and SAP material Bergen was reviewing was too highly classified for anyone without the high security cbeanaoces I3enge~’ had. 46 Naphan, however, was ?rovided document nuniben 150, during his review because of a misclassification error. ~ During the coum’se of Naplan’s review, he placed a pink sticker on the document with a note that Bengem’ must review.”⁴⁸

~ Id.; Official A Interview at 8.

~36 Senior Offmcial 1 Repom’t at 6; Official A Intenview at 8.

‘~‘ Id

~ Senior Official 1 Repont at 6.

mao Ic!.

‘⁴⁰Id

‘~‘ Senior Official 1 Report at 10.

42 Joint Staff Interview at 11,

43 Id

‘~‘~ Id

~ Senior Official I Report at 6.

146 Id

‘i” Id

~ Id.

24

After examining the documents Berger was provided~ Senior Official I and her staff knew that document number 150 was missing.⁴⁹ The pink sticker had been placed on document number l56.’~° By moving the pink sticker from document number 150 to 156, it appears Berger was caretbily thinking through his document theft, knowing that if he failed to leave the pink-stickered document behind, he would be caught. In the report she prepared, Senior Official 1 stated, “[m]y staff and I were almost physically ill with the discovery of missing c-mails.””

Although control sets were established for the NSC numbered documents and the SMOFs, a control set was not used for the c-mails reviewed by Berger.”~ When the staff suspected Berger had taken e-mail documents, they bad to go back and recreate the search process based on the dates of document numbers 216 and 218.’”

The process of relocating document number 217 was explained to the Archives JO by Archives staff

[Official B] was reviewing the folders at someone’s desk, outside [Senior Official 1]’s office, when she discovered #217 missing. [Official A] believed he verified it was missing.

[Official A] gave [Official C] the date of the document before the missing email and the date of the document after the missing email, from email #216 and #218. This was the time frame in which [Official C] searched the emails, using the same search terms which were responsive to the EOP request. The staff was able to verify there was an email that should have been printed and produced to Mr. Berger in that time frame. [Official C] located the missing email. [Official C) then left for the day, before printing the missing email. (Official C] called back to the office to ensure [Official B] knew what to look for on the email system in order to find the email in question. [Official B] told (Official A] another copy of this email was printed, she wrote #217 on the back, and provided to [Senior Official l].”~

‘⁴⁹Senior Official 1 Report at 7.

“°Id at 6-7; Joint Staff Inten’iew at 9.

“ Senior Official 1 Report at 7.

~ Staff Interview at 8.

25

The interview miotes pnepaned by the Anch.ives 1(1 folhowuig theim’ interview with Bergen stated:

[Senior Official 1] first provided Mr. Bengen the documents rnam’ked for review by Mr. Naplan. A vension of the MAAR was with these docunients, mam’ket SECRET. Mn. Bergen did not know why it was classified diffenently than the version he removed in Septemben which was TOP SECRET CODEWORI). It was obvious to him this was a different version of the MAAR. Mn. Clarke had mentioned the MAAR went through several itenatiomis but the changes were oven money not substantive (sic). Mn. Bergen placed this version under his portfolio while [Senior Official l]’s assistant was in the office.

About mid-day, Mn. Bergen came across another version of the MAAR. . . . Mn. Bergen saw a version of the MAAR and miow had doubts that what he removed imi September was the fmnal report. At this point, he wanted to track the evolution of the MAAR. He slid the document under his portfolio.

[Senior Official 1] told Mr. Berger there was a missing document, one that she could not find. Mm’. Bergen said at this point “the bomb should have bunst in the air, but obviously it did not.

[Senior Official I] gave himn another copy of the document. Mn. Bengen slid this document under his portfolio also. [Senion Official 1] did not ask for it back. If she had asked for it back, it would have “triggered” a decisiomi for hini to give the documents back.^m~5

At anoumid 6 p.mn., Bcngen expressed his desire to leave for the day.’⁵⁶ Senion

Official 1 wanted Bergen to stay amid complete the neview.^1~7 Senior Official I suggested Bergen take a walk and comne back amid finish up. What Bergen did next is another bizarre amid peculiar twist imi the stony. The Archives IC reported it as follows:

~ Bergen Interview at 6-7.

‘⁵⁶1d at7.

‘⁵⁷Id

26

Mn. Bergen left the building with all the documents lie put imi his pockets. I-Ic was awanc of the risk lie was taking, but he also knew the guards ~vcnc not thenc in the evening.

Mn. Bem’gen exited the Ancluves on to Pennsylvania Avemuje, the mionth entnauce. It was dank. 1—Ic did not want to numi the nisk of bringing the documents back in the building risking the possibility [Senion Official 1] might notice something unusual. He headed towards a construction area on Ninth Street. Mr. Bergen looked up amid down the street, up into the windows of the Anchives and the DOJ, and did not see anyomie. He removed the documents foni his pockets, folded the notes imi a “V” shape amid inscntcd the documents imi the center. I-Ic walked inside the construction fence and slid the documents under a tnailen.^1~5

After leaving the Archives omi October 2 and retrieving the documents left at the constnuction site, Bergen told the IC’s investigatons that he went to his office and destroyed three of the documents he removed by cutting them into small pieces and disposed of theni in his office trash can.’⁵° Bergen’s acknowledgement that he cut the documents into small pieces contnadicted his statemnent made to the media in July 2004:

“When I was informed by the Archives that there were documents missing, I immediately returned evenythimig I had except for a few documents that I apparently had accidentally discarded.” ~

Duning his interview with Archives IC investigators, Bergen admitted to nemoving four documents dunimig the Octobcn 2 visit plus copies of his handwritten notes, GE That brought his tally of admittedly remnoved documents to five — four from the October 2 visit, and one, the Little Rock Fax, from the September 2 visit. In addition, on all three of lus 9/11 Commission-m’clatcd visits, Bengen also removed his pensonal handwnitten notes, which because based on classified data, are automatically theniselves classified.’⁶²

158 Id

‘~° Id at 8.

moo John Solomon, (7/in/on Advisor Probed fbi Th/dng C/as,vifled Terror Memos, ASSoCIATED PRESS, July 19, 2004 [hereinafter Solomnon July 19, 2004 article]. mom Bergen Imitervicw at 7.

at 4,5, 7; Exec. Onden No. 12958 (1995), Pant 2 Derivative Classification.

27

C. Barger Is Caught

On Octohen 3, after concludinmg that documents wcne missing, Senion Official I telephoned Senior Official 2.163 SemAon Official 1 also left a mnessage for hen supenvison who was out of town, to call hen as soon as possible.¹⁶⁴ After being briefed by Senior Official 1. Senior Official 2 contacted the then Archivist of the United States John Canlin. ~

‘I’he next day, Satum’day, October 4, aftem’ having been briefed by Senior Official 2, the Archivist contacted Senior Official 1 to discuss the matter. ~ On the afternoon of October 4, Senion Official 1 met with Senior Official 2 and Senior Official 3,167 Not kmiowimig precisely the best way to approach Bergen about the matter, Senior Official 1, Scmuon Official 2, and Senior Official 3 settled on contacting Bnuce Lindsey.’⁶⁵ After some back and fonth between Lindsey and Bergen, amid then Lindsey and the Anchives staff, the Archives contacted Bcnger directly.’⁶³ According to Senior Official 1, Bergen was insistent that he did miot have the documents.¹⁷⁰ fri hem’ nepont, Senior Official 1 wm’ites of a convcnsatiomi with Bergen:

He said that he nemenibened that c-mail well, because the topic was of interest to him and that he had been comparing sevenal copies of it to tny to find the most final copy. Bergen said that he ncmcnibcned turning imi the e-mail that Steve Naplan had marked with the pink tab. I said that he did nctunn a folden with an e-mail with a pink tab, but that when we checked the e—miiail lie had hamidcd back in with the pink tab, it was not the right e-mail. I told Bergen we could tell this because we had checked Steve Naplami’s notes that had described the e—mnail in detail by subject amid date, and the e—mail that miow had the pimik tab on it did not match the note. The e-mail that Steve Naplan had tabbed had beemi numnhened

163 Senior Official 1 Repoi’t at 7.

164 Id. at 7.

‘°~ ld at 7.

‘°°Id at7.

‘°⁷1d at8.

‘°~ Id at 8.

°⁹1d. at8.

‘⁷⁰1d at8.

28

as 150 which was no\v missing and the tab was on a diffcncnt numbencd e—mail. Bengcn said perhaps imi comparing the copies of these c-mails to find the most final lie made (sic) moved them out of onden, hut thiat is all he could tlunk of. I said that we hind already checked, that copies that we had served him of these thince numbered c-mails were missing and could he please continue to hook.

After thin dinner hour on October 4, Bengen called Senior Official 1, and according to Scmuon Official 1, implied that the Anchives was responsible for bosimig the documents.¹⁷m To this end, acconding to Senior Official 1, I3engen advised “that we too should check” for the niissiug documents.¹⁷² Reversing course, at approximately II p.m., Berger called Scmuon Official 2, and according to Senior Official I, notified Scnion Official 2 that he had “found” two documents.’⁷³ Senior Official 2 made arnamigements with Bergen to have the docunients retrieved.’⁷⁴

On Sunday, October 5, Archives staff met Bergen, and lie netunmied document nu~nbcr 323 and the Little Rock Fax.¹⁷⁵ Also on Sunday, Archives staff notified personmich from the NSC, the equity holder of the documents.’⁷° A fonmal meeting with the NSC was scheduled for October 7.

Omi October 7, 2003, Anchuves staff met with NSC officials. At that meeting, NSC

Oencm’al Counsel John Bclhingcn advised Archives staff of the NSC’s desire to have the

matter handled by the Archives, the entity with legal custody of the documents.^tm77

Behlingcr told the Archives staff that he had spokemi with White Flousc Coumisel Albento

Gonzales, and Gonzales wanted the matter handled by the National Archives.¹⁷⁸

Behhingen also provided the Archives staff with the names of lawyers at the Department of

Justice to contact negam’dimig a fonmiial criminal investigation. 179

171 Id at 9.

‘⁷²1d at9.

~ Id. at 9.

M Id at 9.

‘~ Id at 9.

⁷⁶1d at 10.

‘⁷⁷1d at 11,

‘⁷⁸1d at 11.

‘⁷⁹1d at 11.

29

On October 10, Archives staff was notified by Bergen’s lawyer, fanny Breucn, that I3enger had additiomial documiien.ts to netunn. An~’angcmcnts wcnc made to pick up notes Bcm’gcn took while at the Archives amid that he had improperly removed.’⁸⁰

H. BergeKs Public Statements

Bcngcm”s public statements months after the imicidcnt took place differ substantially from his hater admnissions. In an Associated Press anticle omi July 1 9, 2004, Berger stated, “I inadventcntly took a few documents from the Archives.”¹⁵¹

This is false. I3engen haten admitted that he intemitionahhy, and in a prenieditated fashion, procured the absence of Senior Official 1, and hid the documents on his person, both in his pants pocket and his suit coat pocket. In the July 19 article, Benger lied when addressing whether he destroyed some of the documents he nemnoved, I-Ic said, “When I was informed by the Archives that there were documents missing, I immediately nctunmicd everything I had except for a few documents that I apparently had accidentally discarded.” 182

This is also false. Bergen hind destroyed documcmits by cutting themn into small pieces. 1-us lawyer, fanny Bneuer, told the Associated Pness for the July 1 9 article, that Berger believed he was hooking at copies of documents)⁸³ This is false. Bergen was pnovided with original documents on three of his four visits to the Anchuves, including original Staff Member Office File that contain personal handwritten notes and other obviously original materials that would be found in amiyone’s personal office files.

In a July 20 Washington Post story, Bneuer stated, Bergen’s actions were the result of sloppimiess amid were unintcntiomiah. I Sq As Bergen later admitted, this proved untrue. In a July 22 Washington Post stony, thnough spokesman Joe Lockhart, Bergen continued to publicly depict the facts in a false manlier. Assumning the lobe of the victim, b3cI’gcr “also feels a scmmse of injustice that after building a reputation as a tireless defender of his

~ Id at hI.

151 Sobomo,i July 19, 2004 article.

182 Id.

83 Id

184 Susan Schmidt and Dan Eggcn, FIJI Probes I3erger for Document Removal,’ Former Clinton Aide Inadvertently Took Papers From Archives, Hi.v Attorney Says, WAS,-,. POST, July 20, 2004, at A2.

30

country that mnany Republicans would tny to assassinate his characten to pursue their own ends,” Lockhart said.’⁸⁵

V. Lax Procedures at Nafiona~ Arch~ves Created an Env~ronment Where Berger Easily Removed H~ghVy Cilassified Documents

A. Classified Documents Handled Inappropriately

FINDING: On th ese four occasions, Archives officials allowed Sandy Berger to review highly class?fied documents outside qf a Sensitive Compartmented Information Facility. On several occasions, Berger deliberately procured the absence ofArchives staff so that he could conceal and remove class jfied documents.

According to Jason Baron, the nepnesentative fi’omn the National Archives’ General Counsel’s office interviewed by Committee staff, Semuor Official 1 and her staff were under the niistakcn impm’cssion that Senior Official 1 ‘s office was a CIA-designated Secure Working Am’ea, and consequently, a pcnmissibhe area to review classified documents.’⁸° This mnistaken belief had held among Archives pensonnel perhaps since 1993, acconding to Baron.’⁸⁷

Pursuamit to CIA directive, SCI material must be reviewed imi a SCIF. 88 Dinccton of Central Intebhigcncc Directive 6/9 relating to Physical Seci.mnity Standards for Semisitive Comnpantmncntcd hnformnatiomi Facilities, section 2.3.2 states, “SCI shall never be hamidled, processed, discussed, or stoned in any facility othcr thami a properly accredited SCIF unless a written authorization is granted” by the appnopniate security authority. 159 Executive Order 12958 on Classified Information specifies agency heads to “establish controls to ensure that classified informnation is used, processed, stoned, reproduced,

85 John F. Harris and Susan Schmidt, Archives Staff Was Suspicious of ilerger; Why

Documents Were Missing Is’ Disputed, WASI-,. PosT, July 22, 2004, at A6 [hcrcinaften i-Iannis/Schmmidt July 22, 2004 article].

186 Interview by Gov’t Refonni Comm. StafF with Jason R. Baron, Dir, of Litig., Office of

the Gemi. Counseb, NARA, in Wash., i).C. (Nov. 20, 2006) [hereinafter Baron Interview].

187 Baron Interview.

188 DCID 6/9 at 2.3.2; See also NARA, Imitenim Guidance 1600-5 (March 31, 2004).

~ Memnonandum of Interview by Staff of OIG, with Senior Official 1, NARA, in Archives I, Coll. Park, Md. (Sept. 12, 2005), at 2 [hereinafter Senior Official 1 Interview TI]; Red Book nefe,’enccs DCIDs (Chapter 2, pant 1, pg. 2-5, no. 9a).

31

tnansmnittcd. and destroyed under conditions that provide adequate protection ,190 Updated Archives guidehimies, as of March 2004, specify those ncvicwing classified matcm’iahs anc to “usc a Sensitive Compantniemited Information Facility (SCIF) or dedicated conference room on othcn limited-access area, not an active office.”¹⁹’

Each visit by Bergen occurred in Senior Official 1 ‘s office in the niain Ancluves facility in Washington, D.C.¹⁹² Bengem’ was miot briefed by Senior Official I about the pnocedunes for reviewing the documncnts.’⁹³ Bergen believed he was afforded the opportunity to conduct the docunicnt neview in Senior Official I ‘s office as it was a nionc comfontabhe room than the SCIF, which’m was descnihcd to hini as a hess comfortable work area.¹⁹⁴

The records were brought fi’om the SCIF to Senior Official I ‘s office for Bergen’s review.¹⁹⁵ According to Archives staff, despite it miot being a CIA-approved SCIF, Senior Official l’s office was sometimncs used to review SCI matcniab.’⁹° The Am’chives IC reported, Official A, a staff mncmnbcn on Senion Official l’s staff, stated he “did not believe there were any issues with reviewimig SCI mnatcrial in Senior Official b’s office.”¹⁹⁷ Official A clainied that SCI material could be viewed in Senior Official l’s office “as hong as it was a contnohlcd environment, the reviewer was monitored, and the reviewer had the appropriate chcarances.”~ The notes prepared by the IC, however, are clear that Official A kmiew Senior Official l’s office was not a SCIF.’⁹⁹ Cell phones, for cxamnphe, Official A is reported to have said, were permissible in Senion Official l’s office, and not in the SCIF where the staff stoned sensitive documnents.²⁰° The Archives IG neponted Official A said that I3engen is not the only person to have reviewed sensitive

190 Excc. Order No. 12958 (1995), Part 4 Safeguarding, §4.20).

‘~‘ NARA Interim Guidance ¶4(b).

192 Senior Official 1 Report; Official A Interview at 2.

~ Bergen Interview at 2.

194 lc/.

195 Official A Interview at 2.

196 Id; h3anomi interview.

197 Official A Interview at 2.

¹⁹⁸1d

‘~ Official A Interview at 10.

200 Id

32

docun2ents iii Senion Official l’s office.²⁰¹ Others were two Clinton nepnesentatives Nancy Soderbeng, amid Bruce Lindsey --- and John Mince, President Rcagami’s representati ye 202

Bergen also was permitted to bring lus pontfolio to Senior Official l’s office during his document review.²⁰³ The Archives IC’s interview notes pnepared fohhowing an intenview with Se~iion Official I stated, “[m]ost officials reviewimig documents in the SCIF were allowed to bring in brief cases, notebooks, and paper. She assumned because of the security clearances granted these individuals they were aware of the prohibition of cell phones in a SCIF.”²⁰⁴ Bergen oftemi pnocuned Senior Official l’s absence, heaving him unnionitoned for pem’iods of time. While usually she was bullied into this, she told thin IC it made her feel unconifortab1e.^20~ ‘i’he Archives IG’s interview notes stated:

Mn. T3ergen would nonnially use her phone to make calls. Mn. Bergen would say “Sony, I have to make a pnivate phone call” and [Senior Official 1] would take this as her cue to heave. Mn. Bergen would non~nalhy use hen phone to make calls. [Semuor Official 1] left as she trusted Mr. Bergen amid was aware that Mn. Bengen, as National Security Advisor, had generated mnost of the documents that he was neviewimig. 1-loweven, [Semuon Official 1] did miot like leaving her office. This was because she works with sensitive itemns of the incumbent President and did not feel comnfontabhc leaving Mr. Benger alone with this mnatenial, especially on hen desk where her phone was located.²⁰⁶

The imitcrview notes prepared followimig Bergen’s interview with the Anchives 10 investigators concur. Omi the July I 8, 2003 visit, for example, Bergen reportedly stated that his secretary called hini “half a dozen times.”²⁰⁷ The miotes stated:

Mr. Bergen told [Semuor Official 1] he was happy to go outside her office to take the calls. [Senior Official 1] asked Mr. Bengen if he needed privacy to which he said ‘yes.’ [Senior Official 1] said

~ Official A imitenview at 3.

202

Id.

203 Scmnon Official 1 Interview I at 4.

204 Id.

205 Id.

206 Senior Official 1 Interview I at 6.

207 Berger Interview at 3.

33

imistead that she would go outside hen office whule lie was on the phone, which she did. Omice this pattern was established, lie thought the offem’ for lien to leave lien office was ‘stamidiug’²⁰⁵

Baron confirmed to Committee staff that Bergen was provided original documents in the fonmn of Staff Membem’ Office Files and NSC numbered documents during his first two visits to the Am’chives.²⁰⁹ Likewise, Bem’ger reviewed original NSC numbered documnents omi September 2, 2003.

The Anchnvcs cannot be ccntaimi that Bergen did miot remnove documncnts dunimig th’mese finst two visits.²¹⁰ Whole original documents froni the SMOFs and pants of onigimiah numbered NSC documents which ale inventoried only by their coven page — could he nemnoved without any way to detect their removal. Baron acknowledged that it is conceivable that the 9/11 Comnmission ~nay not have received all documemits responsive to the FOP document requests.²’ 1 There is no way to verify that Bergen did not remnove original documnents on May 30, 2002, July 18, 2003, amid September 2, 2003.

B. After Breach, Law Enforcement Not Engaged Quickly

FINDING: Failure to engage law enforcement at the appropriate time compromised a proper investigation. Archives stafffailed to not?fj’ law enforcement officials when there was a reasonable suspicion class jfled government property had been removed by Berger.

At the Archives, secunity procedures and requirements ane contained in the h~ifonniation Security Manual, also known as the “Red Book.~~²tm² The Red Book, however, was last published in 1989,213 Sonic at the Archives consider it out of date for

208 Id.

209 ‘i’clephonic Interview by Gov’t Refonmn Comnm. Staff with Jason R. Baron, Din, of Litig., Office of the Gen. Counsel, NARA, in Wash., i).C. (Nov. 27, 2006) fhieneim’maften Baron Telephomiic Imitenview].

210 Id.

2~l

212 Baron Interview; Official A Interview at 10.

2l3 Red Book.

34

nefenence purposes.²¹⁴ Senior Official I told the Anchives IC the Red Book was out of date, amid to this emid, was in the process of being updated by the Anchives.^2m~

Under Red Book guidehnes, if Archives personnel diseoven a possible compromise of classified informnation, they are required to notify the agency’s secum’ity mnanagcr.²¹⁶ By miotifying Senior Official 2 and Semuon Official 3, Archives officials say they believe Senior Official 1 comnplied with hen Red Book obligations.^2m7 Archives officials mnaintain the Red Book only requires the Depantmnent of Justice to he notified whien espionage is suspected.²¹⁸ The Anchives IC concluded that since espionage could

7,9

not be ruled out, Justmce Department officmahs should have been notmfed mn1mnedmatehy. -

Senior Official 1 was familiar withi the Director of Ccntnah Intelligence Directives (DCID5) but believed their reach extended only to agencies fonmahly within the intehhigence conimunity.²²⁰ Since the National Archives is not pant of the intelligence commnunity, its applicability to Archives personnel was not clean to Senior Official 1.221 i-lad thmey been applicable to the Archives, Senion Official I told the Archives IC, she thiought they would have been incorporated into the Red Boolc.²²² Acconding to the Archives IC’s Report, the Red Book does reference and incorponate the DCIDs.²²³

Archives officials made a tennible mistake in not notifying law enforcement officials, which has serious consequences for the integrity of the Anchives documents. Immnediate notification in response to suspicions that Bergen had stolen classified documnents mnay have allowed for the government to retrieve the mnatenials Bcm’gen nemnoved. Whether espionage is a niotive for removing classified mnateniahs on miot, law enforcement should have been notified. The purpose of classified document control is national secum’ity broadly, hot only coumiten-espionage. The ad hoc inquiries by Archives staff to Bengcn following time October 2 docunient removal niay have substantially

214 Official A Tmitenview at 10.

215 Senior Official I Interview I at 13.

216 Red Book, Chapter 7, ¶2.

2 m 7 Id.

218 l3anon Interview.

7,9

- IC Repom’t at 3.

220 Id.

221 Id

222 Senior Official 1 Tntenview I at 14.

223 Semiion Official 1 Interview IT at 2 (citing Red Book, Chapter 2, pant I, at 2-5, no. 9a.).

35

conipnomnised a propem’ law emifoncement imivestigation amid time recovery of all stol cmi documnents. If I3erger took other documnemits than those lie was caught with on that lie had admnitted taking, a surhDn~se search was more likely to recover thiem. In any event, the public ivoubd have mone confidence that lie did not take other documnents.

C. Personnel Action

Following its investigation, the Archiives IC determined that Archives staff erred in facilitating access to classified information in ami umiauthonized scttimig on five occasiomis.²²⁴ Additiomialby, the Archives IC found fault with thin manmien in which Anchives staff notified the appropriate authorities following the removal of classified infonmation fromn thin Archives.² 5 The Information Security Manual requires Anchives personnel to immnediately notify the Departmnent of Justice by the fastest means possible.²²⁶

The Am’chives IC identified a series of violations by five Archives emuphoyccs. The Archives IC determined the provision of access to SCI and SAP mnatenials in an unauthorized setting violated 18 U.S.C. § 793(1) relating to losing defense information, 18 U.S.C § 1924 (a) nehating to the unauthorized nemnovah and retention of classified documnents on mateniahs, Director of Centnah Intelligence Directive 6/9, Section 2.3.2 nehating to Semisitive Comnpartmnent Imiformation Facilities, and the agency’s own Information Secunity Manual.²²⁷ Once there was a suspicion that Bergen may have removed classified infonmatiomi, first naised during the Septeniben 2 visit, Archives officials should have reponted the incident immediately to a law- enfoncement entity.²²⁸ Failure to do so was a violation of National Anchuves procedures.²²⁹ Archives staff repeatedly failed to contact law enforcememit when Bergen’s suspicious activity resunfaced during the October 2 visit.²³⁰ Archives staff thwarted a proper investigation by law enforcement b~’ contacting Bcrgcr, the subject of a criminal investigation, several timiies by telephone.²

224 IC Repont at 2.

225 Ic!.

226 Ic!. quoting Red Book.

²²⁷NARA OIC Briefing Paper, Samuel R. Bergen, et al, 04-001-CC (Jami. 9, 2006) [hem’einaften NARA OIC h3niefing Paper].

228 Id

229 Red Book, Chiapten 1, Section S.f

230 NARA 010 Briefing Paper.

23m Senior Official 1 Repont at 6-7; IC Repont at 12-13; NARA 010 Briefing Paper.

36

Following the neceibit ofthie Anchuves IC Report, Allemi Weistein, the eum’remit Anehivist of the Umiited States delegated the personnel imiquiny to 1-leminy Leibowitz, the agency’s hunian resources director,²³² Leibowitz’s inquiry examined the actions of four Archives employees — Senior Official 1, Semnon Official 2, Senior Official 4, and Senior Official ~233 lJhtimatehy, Leibowitz issued three administrative sanctions, a “Counselling (sic) Letter” to Senior Official 4, amid wnittcnm “Reprimnamid Lettens” to Semuon Official 2 -and Seniom’ Official 1 ,234 All three emnphoyees appealed the sanctions to the Anchivist.^23~ On appeal, Senior Official 4’s hette,’ was withdnawn.²³⁶ Senior Official 5 received a letter stating that there was no grounds for disciphimic.²³⁷ None of the Archives emnployecs received a neductiomi in pay on any changes in their job titles on professional responsibilities.²³⁸

Senior Official 2 neceived a written Letter of Reprimand on June 27, 2006.239 Such letters remnain imi the employee’s official personnel file for two years. Leibowitz found Senior Official 2 to have exencised a lack ofjudgmnent for failing to notify law enforcement officials in a timely nianner,²⁴⁰ Senior Official 2, however, was absolved by Leibowitz of violating any security procedures.²⁴’ Leibowitz’s decision was appealed to the Archivist, amid on October 3, 2006, the personneh sanction was upheld.²⁴² On appeal, hiowcver, Senior Official 2 did win the o?Ponumiity to have the Letter of Repnimnand removed fi’oni his officiah personnel file. ~ The removal of the letter from the personnel

232 I3anon Tmitenview.

233 When the allegations of Bergen’s mnisconduct were brought to the attentiomi of the

Archivist, he delegated the agency’s response amid investigation to Senior Official 4.

234 I3anomi Interview.

235 Id

236 Id

237

Ic!..

238 Id

239 Id.

240 Id

241 Id.

242 Id

243 Id

37

file niakes the sanction imivisihhe to other potential govemnmnent emphoyensY⁴’ That said, Senior Official 2 would, however, he required to disclose the sanmction were lie asked about it in the counse of a job application or hackgnound check.²°

Senion Official 1 received a wm’ittcmi Letter of Repnimnand on June 27, 2006,246 Leihowitz determinmed that Senion Official I hachced judgmnemit in leaving Bergen ahomie in lien office, and thiat the use of bier office for the documncnt review was not a good practice.²⁴⁷ Semiion Official 1 appealed to the Archivist. In an October 3, 2006 letter, the Anchivist affirmed that Senior Official 1 had lachcedjudgmnent in leavimig Bergen alone in hen office, hut upon a detcrmninatiomi by the security office that Senior Official 1 did not intentionally violate any security directive, and that any security breach by usin~ her office was only a technical violation, that ground for reprimand was removed.²⁴ Like Senior Official 2, however, Semiion Official l’s letter was removed fromn hen official pensonnel file.²⁴⁹

Semuon Official 1 received a written Letter of Reprimand on June 27, 2006. Leibowitz determined that Senior Official I lacked judgment in leaving Bengem’ alomie in her office, amid that the use of her office for the document review was not a good practice. Like Senior Official 2, however, Senior Official I ‘s letter was nemnoved from her official personnel file.

D. Archives Substantially Revises Procedures

On March 31, 2004, Deputy Archivist and Chief of Staff of the National Anchives

Lewis J. Bellando issued compnehiensive new guidelines for the hamidhing of classified

mateniahs,^2~° The miew guidehimies were transmitted agency-wide in the fonmn of a six page

Intenimn Guidance menionanduni entitled, “Access to Materials Containinq Classified

Imifonmation imi NARA Research Rooms by Non—Covennmiienmtah Persons.” ~‘ The

244 Id

245 Id.

246 Id.

²⁴⁷Id

248 Ic!

249 Id

250 Lewis J. Bellando, Deputy Archivist of the United States and Chief of Staff to the Natiomial Ancluves and Records Admninistration (NARAA), Interim Guidance 1 600-5, Access to Materials Containing Classified Informnation in NARA Research Rooms by Non-Govcrnniental Persons, March 31, 2004 [hereinafter Tntenini Guidance].

251 Id

38

comiipnehemisive new guidamiee specifically addnesses mamiy of the lax procedures in fonee during T3engen’s visits.

Under the miew guidelines, classified mnatenials must be reviewed imi a dedicated noomn, not an active office.^2~2 The dedicated room mnust be fec of all non-authorized mnateniahs,^2~3 Under the miew rules, Bengen would not be pennutted to review doeumcnmts in Senior Official 1 ‘s pensomial office. Likewise, Berger would miot be pem’niitted to review docunients imi an office settimig that comitaimis other classified materials which Bergen was not cleaned to see.

The guidelines cahh for alh notes to be taken on paper easily identified as that pnovided by the National Archives.²⁵⁴ Classified materials are now to be handed to researchers one box at a tinie, and onhy one box niay be on the researchers table at any omie timne.^25~ Cehlphones and othier electronic equipmncnt arc no longer permitted in research nooms.^2~° The new guidelines call for the implementation of closed cincuit tehevision monitoning and necording equipment so that the classified mnateniahs can be further protected.²⁵⁷ The closed circuit television equipnicnt is to serve as “a detennent measure and aids imi any imivestigations.”^2~8

The guidelines offer specific guidance for classified production reviews pursuant to subpoena, whether this be unden the authority of a congressional comnmnittce, indepemidemit investigation or comnnssion, on by a count.²⁵⁹ Important new aspects include:

Researchers are to be continuously momutom’ed by Archives staff Contimiuous momutonimig nicanms the Anehiives staff must be watchung time neseanchen full timnc, and mint wlulc penfon,ning other duties.

~ Provide researchers with numbered copies of the documents.

~ Maintaimi a secomid control set of documnents and documnent inventony log.

252 Imitenim Guidance at ¶ 4(b).

253 Id at ¶ 4(d).

254 Id at ¶ 6(a).

255 Id at ¶ 6(d).

²⁵⁶Id at ¶ 6(b).

257 Id at ¶ 6(c).

258 Id.

^2~9Id at~8.

39

Each nesearchen is m’equired to sign a receipt as each box is pnovided fo,’ review.

~ Omi return, the Archives staff are to examnimie each box before the reseanchien is penmnitted to leave the m’eseareh room.

~ If the neseanchcn believes he/she requires the original documnents, and not copies, a written waiver request mnust be hinocessed through the offices of the agency’s General Counsel and head of Security.²⁶⁹

Thus comprehensive new guidance specificahhy addresses niany of the lax procedures in fom’ce prior to April 2004 and should ameliorate the need for a funthen overhaul of the security procedures for the review of classified materials.

VL Effects on 9111 Commis&on’s Work ~- Not Kriowab~e Whether AU Documents Were Produced

A. Inspector General and Justice Department Clash Over Notifying 9/11 Commission

FINDJNG: The Archives Inspector General and Justice Department officials clashed over not jfj’ing the 9/Il Commission of the extent of Berger’s document removal and the fact that Berger had access to original documents that may have been responsive to Gonimission document requestc. No one told the 9/11 Commission that Berger had access to original documents.

In January 2004, Archives Inspector Genenal Paul Bnachfeld comiteniphated whether Archives officials on officials fromn his office had a responsibility to notify the 9/i 1 Comn,nission about the Bergen matter.²⁶’ Bnachfehd was concerned that during the course of a cnimninab investigation being conducted by the Department of Justice, officials at Justice mnighit be reluctant to miotify the 9/1 1 Comnmission.²⁶² I3nachfebd necognized that prosecutors are rightfully tighthipped about pending investigations, hut believed that disclosure of Bergen’s actions was necessary to allow the 9/11 Comnmission the ability to evaluate i3ergen’s credibility amid tnuthfubness as a witness.²⁶³ Bergen had access to onigimiah documents duning three ol lus four visits to the Archives, amid comisequemithy could

²⁶⁰Id at~9-10.

261 Tmitenview by Cov’t Reform Comnmn. Staff with Paul Brachfeld, Inspector Gen., NARA, and Kelly Maltagliati, Special Agent, NARA, in Wash., I).C. (Dec. 1, 2006) [hereinafter Bnacbfehd and Maltaghiati Inte,’view, Dcc. 1, 2006].

262 Bnachfehd and Maltaghiati Interview, Dec. 1, 2006.

263 Id

40

have removed documents that were responsive to 9/11 FOP requests. Bnaehfeid also was comicenned that the 9/il Commissiomi mnighit miot have been fully aware of the scope of i3enger’s alleged mnisdeeds.²⁶⁴ Bnachfeld said there was reasonable evidence Bengen might he obstructimig the 9/1 1 Coninussiomi’s imivestigatiomi amid the 9/li Comniission ought to know that.^26~

On January 14, 2004, Braehifehd mnet with Howard Skhamnbeng, one of the tniah attonneys at the Justice Department handling the Bergen mnatten for the Public Integrity Section.²⁶⁶ Bnachfehd wanted answers to three questions: had the Justice Depantmnent notified the 9/il Coniniission of Bergen’s actions; had the Justice Depantniemit identified the extent of potential damage to the Comnmnission’s documnemmt requests; that is, had the Department fully accounted fon all documneuts i3enger niay have removed; and had the Depantnicnt commnunicated the possibhe extent of the damage to the 9/1 1 Comnmissiomm.²⁶⁷

That samne day, thie 9/Il Comnniission conducted its private irmtenview with Sand)’ Bem’gen.²⁶⁸ Whethien Bnachfehd om’ the Justice Depantmnent knew that Bergen was being questioned by the Commission is not known. Bengen’s public testiniony occurred on March 24, 2004.269

On Manch 22, 2004, two days before Bergen’s public testiniony, Bnachfeld received a telephone call fi’omn two Justice Department officials, Chief of the Counterespionage Section John Diomi and Deputy Assistant Attonney General for the Cnimninal Division Bruce Swantz.²⁷°

The punpose of the call was twofold. First, the Justice Department officials wanted to thank Bnachfchd for suspending his internal inquiry while the Justice Depantmemit pursued its criminal mnatten agaimist Bergen. Seeomid, the Justice Depantmnemit wanted to notify Bnachfehd that Bergen was to testify before the 9/11 Commnissiomi.

264 Id.

265 Ic!

266 Id.

267 Ic!

268 The 9/11 Report, see notes at 479-S 09.

269 The 9/11 Commn’mi (March 24, 2004) (testimony of Samuel L. (sic) Bergen); ]~fp://www.9 I icpmmission.gov/hearings/hieaning8/bergcn statement.pdi (last visited Dec. 17, 2006).

270 Bnachfeld and Maltaghiati Interview, Dcc. 1, 2006.

41

Brachfeld was advised that the Justice Department was not goinq to notifY the 9/11 Commission about the pending criminal investigation of Berger. ~‘

This took Brachfeld by surprise as he was unaware that the 9/11 Commission was scheduled to take Berger’s public testimony.^tm According to Brachfeld, they stated that Bracbtbld ultimately may be at risk for not notifying the 9/11 Commission of the circumstances involving Berger’s visits to the National Archives.²” Brachfbld was also advised that the Justice Department believed that notifyinØe 9/11 Commission about the Berger incident could compromise their investigation. ~

Dion’s recollection of this call is not clear?⁵ mon recalls speaking with Brachfeld on numerous occasions, both in person and on the telephone.²⁷’ Dion said it was possible that he and Brachfeld conversed about the differing obligations of the Inspector General’s Office and the Department of Justice about notifying the 9/il Commission.²⁷⁷ In Dion’s view, the Justice Department’s first obligation was to conduct its criminal investigation in the proper way?~

Brachfeld told Committee staff he found himself in an extremely precarious position?¹⁹ He was concerned that Berger’s public testimony was scheduled to go forward before the 9/li Commission without the Commission knowing that its witness might not be reliable and trustworthy?’° On the one hand, he felt obligated to notify the 9/11 Commission that one of their witnesses’ veracity and credibility may be in question, but on the other hand, he felt obligated not to divulge this information as it may affect a pending criminal investigation by the Justice Department.²⁸’ On several occasions

272k

273 Id

²⁷⁴Bm&dèld and Maltagliati Interview, Dec. 1, 2006.

275 Telephonic Interview by Gov’t Reform Comm. Staff with John Dion, Chief of the Counterespionage Section, DOJ, in Wash., D.C. (Jan. 8, 2007) [hereinafter Dion Telephonic Interview].

²⁷⁶Dion Telephonic Interview.

277 Id.

278 Id.

^2~Id

²³⁰1d

~‘Id

42

Bnaehfeld referred to Dion as a powerful and. influential Justice Depantment official,, anch consequently Brachfebd believed it was cancer suicide to cross Dion.Th²

To protect himself, on the March 22 call, Bnachfehd requested an inoculation letter from Swantz to insulate himself from changes that he willfully failed to notify the 9/i I Commission about facts nelevant to the Bergen niatten.²⁸³ According to Bnaehfeld, Swantz agreed to provide such a letter.^28~~ When asked about the inoculation letter, Dion ‘~did not specifically necahh” discussing such a hetten with Bnaehfcld, but said that did not mean it was not diseussed.^28~ The Justice Depantment never provided this bettcn.²⁸⁶

On March 25 on 26, 2004, Bnachfebd called Thomas Reilly at the Justice Department.²⁸⁷ Reilly and Sklambeng were the trial attorneys handling the Bergen matten.²⁸⁸ Reilly worked for Dion in the Countencspionage Section, and Sklambeng worked for Noel 1-iillman in the Pubhie Integrity Section. 289 The purpose of this call was to discuss with Justice specific witnesses the Archives 10’s office was penmitted to interview, Up until this point, the 10’s internal inquiny had been stalled pending funthen notice from the I)cpartment of Justice about the pnognession of the Bergen investigation.²⁹⁰ Aeconding to Bnachfeld, Reilly agreed to confer with othcn Justice Department officials and follow up with Bnachfebd with the names of specific witnesses that the Anehives TO’s office could proceed with intcnvicwing.²⁹’

i3nachfcld was concerned that the longer his internal investigation remained on hold, the less pnoductive it would be considening that witnesses’ memories tend to fade oven time. Despite Reilly’s commitment to pnovide such a list, Bnaehfeld neven received

282

283 Id

284 Id.

285 Dion Telephonic Interview.

²⁸⁶Bnachfcid and Maltagliati Interview, Dec. 1, 2006.

287 Id.

288 Id.

289 Id.; Bergen, Factual Basis for Phea at 3.

290 Brachfeld and Maltagliati Interview, Dec. 1, 2006.

291 Id.

43

it.²⁹² On this call, Bnaehfeld expressed his concern to Reilly that the 9/il Commission had not been notified about the Bergen matter²⁹³

Frustrated, on April 6, 2004, Brachfchd called Glenn Fine, the Inspector General for the Justice Dcpantment.²⁹⁴ Bnaehfehd related his two concerns to Fine whether the 9/il Commission was properly notified and whether the document production was tainted by the fact Bcngcn may have removed original documents.²⁷⁵ According to Brachfeld, Fine agreed to hook into the matter.²⁹⁶

Fine organized a meeting for April 9, 2004.297 Present at the meeting, according to Bnaehfeld, were Assistant Attorney General for the Cniminah Division Christopher Wray; Wray’s Chief of Staff John Richter; Dion; Swantz; Skbamberg; Reilly; Fine; and Bnachfchd’s principle investigator.²⁹⁸ According to Brachfcld, the purpose of the meeting was to discuss whether the Justice Department had an obligation to disclose facts relating to the Bergen matter to the 9/li Commission.²⁹⁹ In Bnachfeld’s view, Bergen knowingly removed documents and therefore, may have punposely impeded the 9/1 1 investigation.³⁰⁰ Braehfcld felt that Christopher Wray was sympathetic to the dilemma.³⁰¹ Brachfcld told the group that pertinent original documents might have been removed by Bengcn.³⁰²

292 Id.

293 Id.

~ Id.

295 ld.

296 Id.

297 Id.

29$ Id; Interview by GoVt Reform Comm. Staff with Glenn Fine, inspector Gen., U.S. Dep’t of Justice [hereinafter DOJj, in Wash., I).C. (Dee. 7, 2006) [heneinafter Fine Interviewl. Fine confirmed the personnel assembled fon the meeting, with the exception of Sklambeng and Reilly.

299 Bnachfeld and Maltagliati Interview, Dcc. I, 2006.

300 Id.

301 Id.

44

A debate emerged between Bnachfeld and Bruce Swartz about whether the 9/li Commission received all documents.³⁰³ Bnaehfeld thought the Justice Department was focusing exclusively on the September 2 and October 2 visits by Bergen, and by not examining Bergen’s first two visits, they were failing to consider in1pontaut evidence.’⁰⁴ Swantz remained fixated on his conclusion that Bergen took nothing else, and the 9/li Commission received a complete production.^30~ Swartz insisted that I3erger was examining only copies of documents, and therefore the damage to the 9/li Commission was limited.³⁰⁶

Swartz and the other Justice Department officials failed to grasp, in I3rachfeld’s view, that Bergen had access to a lange number of original and unique documents on his first two visits to the Archives on May 30, 2002 and July 18, 2003.~°~ Bnaehfcld ncitcnated his point by referring to Senior Official l’s statement “six months ago” whene she said, “she would never know what if any original documents were missing.”³⁰⁸ Disagreeing, Swantz responded that Senior Official I said she was present at all times.³⁰⁹ i3naehfeld countered that Senior Official 1 was working at hen desk and Benger was at a conference table, that Bergen had an overcoat with him, and there was no way for Senior Official 1 to have seen everything.³¹⁰ According to Brachfeld, Wray and Fine indicated they understood Brachfeld’s concerns, and both Wray and Fine asked whether the FBI had questioned relevant witnesses regarding the finst two visits.³¹ 1 The FBI stated that they did not question Bergen about the first two visits.³¹² With confirmation of this, Wray and Fine agreed with Bnaehfeld that they could not be ccntain the 9/Il Commission received all responsive documents .~

~ Id

304 Id.

305 Ic!.

307 Id

~ Id; See also, Senion Official I Interview I at 12. (“[Senior Official I] advised that Mn. Bergen was served originals on his July 1 8, 2003 visit. She would never know what if any original documents were missing. There was no absolute way to verify if any originals were removed.”)

309 Bnachfeld and Maltagliati Interview, Dec. I, 2006,

311 Id

312 Id

313 Id

45

The schism between i3racbfeld and Swartz on the issue of the completeness of the 9/11 Commission document pnoduetion never abated.³¹⁴ As the meeting concluded, Chnistophen Wnay gave Bnachfeld his assurance that the 9/11 Commission was to be notified.³b Fine’s necollcetion was Wnay agreed Daniel Levin, the Justice i)epartment’s liaison to the 9/11 Commission, was to communicate this information to the 9/il Commission General Counsel Daniel Marcus.³¹⁶

The information communicated by the Justice Department to the 9/li

Commission never was specifically outlined to Brachfeld.³¹⁷ On multiple occasions

throughout April and May, 2004, Bnachfeld attempted to follow up with the Justice

Department to see if it followed through with its commitment to notify the 9/1 1

Commission.³¹⁸ Not until May 26, did word make its way through Glenn Fine to

Brachfcld that “relevant information” had been given to the 9/11 Commission.³¹⁹

Concerned what “relevant information” meant in the eyes of Justice I)epartment officials,

Bnachfcld attempted numerous times to follow up with Justice.³²°

On July 19, 2004, the Associated Press first reported that Bergen was the subject of a criminal investigation for removing highly classified documents from the National Archives.³²¹ This occunned just days before the July 22, 2004 release of the Commission’s Final Report.³²²

Bnachfehd’s level of concern continued into the fall of 2004.323 In November, Bnachfeld discussed with Fine the prospect of having a follow up meeting with the relevant Justice Department officials.³²⁴

314 Id.

315 Id

316 Fine Interview.

317 Bnachfeld and Maltagliati Interview, Dec. 1, 2006.

31$ Id

319 Id

320 Id

321 Solomon July 19, 2004 article.

322 The 9/11 Comm’n website, ~flp://~ .9-ilconjp~jssion~gpv/ (last visited Dec. 17,

2006).

323 Brachfcld and Maltaghiati Interview, Dcc. 1, 2006.

324 Id.

46

On November 5. a meeting was convened with Justice officials, Dion, Swartz, and FImman.^32~ At this meeting, Dion and Swantz told l3nachfeld the 9/i I Commission was not informed that Bergen had access to original documents.³²⁶ On hearing this, Noel I-Iillman appeared angry and penturhed, according to Brachfeld.³²⁷ Brachfeld said he noticed Swartz becoming visibly agitated as I-Iillman’s dissatisfaction became evident.’²⁸ Although Brachfcld had long suspected a substantial exposure in the 9/11 Commission’s investigation, it was not until this meeting that he realized his worst fears were true.³²⁹ When questioned about this meeting, Dion recalled being in attendance, but did not have a “specific recollection” of what occurred at this meeting.³³⁰

During the Nnvember 5 meeting, Brachfeld revisited Swantz’s March 22 offer to provide an inoculation letter.³³¹ In Brachfeld’s view, such a letter would provide some measure of protection to Bnachfeld from any later-alleged wrongdoing associated with not notifying the 9/11 Commission of the facts of the Bergen matter. 332 During this meeting, however, Swantz was noncommittal about such a letter, telling Brachfcld that he would have to cheek his notes from March 22, and Swartz believed any such letter would be applicable only to the 9/11 Commission and not Congressional oversight committees ~

On November 1 9, 2004, Archives 10 investigators met with the FI3I to discuss their investigation.³³⁴ During this meeting, the FBI confirmed to Archives 10 investigators, that they did not question Benger about his first two visits to the Arehives.^33~ The Archives IG’s staff asked the FBI case agents why. The FBI told Brachfeld’s staff that they did not question Bergen about his first two visits because the first visit on May 30, 2002 was not relevant to the 9/11 Commission document requests

327 Id

328 Id.

330 Dion Telephonic Interview.

331 Bnachfeld and Maltagliati Interview, Dec. i, 2006.

332 Id.

~ Id

~ Id

47

and during the second visit on July 1 8, 2003, I3ergcr was supervised for the duration of his visit by Senior Official 1 ,j~6

On Novenffier 23, 2004, a follow up meeting at the Justice Department occurred.³³⁷ In attendance, according to Brachfeld were Dion, Swantz, Hillman, Reilly, and the FBI case agents.³³⁸ Brachfeld raised the q~uestion of why the 9/li Commission was not told that Bergen had access to originals.^3~’ Brachfeld asked Reilly whether the Justice I)epantment would he willing to go back and look more carefully at this question.^3~ 0 According to Brachfeld, Reilly said no, indicating “it would take a long time” and much effort.³⁴¹ Brachield continued to press his case that the opportunity existed for I3enger to remove crucial documents.³⁴ Hillman was shown a copy of the Official A e-mail where he alerted Senior Official 1 about seeing Benger with documents folded and stuffed in his socks on his third visit when he bad access to original documents.³⁴³ After the Official A c-mail was read, Bnachfeld asked every person in the room to pull up their suit pants and look at their dress socks.~⁴⁴ He asked everyone to consider whether “something white” might be easily noticed if papers were lodged in their socks.^34~ Bnachfeld pressed Justice Department officials about why they did not consider Official A and his contemporaneous e-mail more indicative of Bergen’s culpability.³⁴⁶

Brachfeld asked whether the Justice Department had obtained Bergen’s medical records to see if he was suffening from phlebitis on other medical condition that might cause him to need to wear a white sleeve on his leg.³⁴⁷ The Justice Department

336 Itt

‘~‘~ Itt

338 Itt

340 Id

341 Id

342 Id

x~ Itt

~ Itt

~ Id

346 Id

~ Id

48

acknowledged that they did not look into Bergen’s medical histony.³’¹⁸ At this point, according to Brachfeld, Swartz became agitated, and screamed, “Are you accusing me of failing to tell the 9/11 Commission?”^3~19

After that meeting, Brachfeld conferred separately with Hillman. Flillman acknowledged if Justice had known all the details earlier •~ that Benger had access to originals the I)cpantment would have told the 9/11 Commission mone.^3~0 Bnacbfeld protested that he had been communicating this point to the Justice Department -~ at least since April.³⁵¹ Hillman agreed to interview Senior Official I personally.³⁵²

According to Brachfeld and his staff, i-Iillman personally interviewed Senior Official 1 on December 1 0, 2004.~~~ Present at this interview was the Archives 10’s lead investigator, Special Agent Kelly Maltagliati.^3~4 Maltaghiati told Committee staff that at the conclusion of 1-lillman’s questioning of Senior Official I, she witnessed I-lillman instruct the FBI case agents present that they were to go back and look at documents from all of Bergen’s visits.^3~ To the Archives 10’s knowledge, the FBI never reviewed the documents from Benger’s first two visits.³⁵⁶

On April 1, 2005, the Justice Department announced its plea agreement with

Bergen. In speaking to the press, 1-lillman startled Brachfe!d by stating the Justice

Department’s investigation found no evidence of i3engen trying to hide anything from the

9/il Commission, and the Commission had access to all documents it requestcd.^3~7

On April 13, 2005, Brachfeld met with 1-lillman to discuss these points. According to Brachfeld, 1-lillman now believed that Bergen was being honest with the

348 Id.

~ ItI When questioned about this meeting, Dion recalled being in attendance, but did not have a “specific recollection” of what occurred at this meeting. Dion Telephonic Intenview.

350 Brachfeld and Maltagliati Intcnview, Dec. 1, 2006.

35’

Id.

352 Itt

~ Id ~u Itt

~ Id

356 Id

49

Justice Department and the risk that he took additional documents was minimal ~ i-Iillman explained to Bnachfeld that his public statements were narrowly tailoned to the facts included in the plea agreement, and Flillman could only confirm that the 9/1 1 Commission received all documents relating to the Millennium Alert After Action Review.^3~9

Despite all of these considerations, according to the Archives IG and his staff, the FBI or the Department of Justice never questioned l3engen about his May 30, 2002 and July 18, 2003 visits.”⁶⁰ Bergen had access to alange volume of original documents on these two visits. On May 30, 2002, Bergen was provided several boxes of original and unique documents, including the original, uncopicd Staff Member Office Files of Richard Clarke and original, uncopied, unique NSC numbered documents.³⁶’ During Berger’s second visit on July 18, 2003, he was provided original, and uncopied Staff Member Office Files and original, and uncopied NSC numbered documents.

B. Justice Department Convinced Berger’~s Document Theft Limited to What He Admitted

FINI)ING: There is no basis for concluding Iierger did not remove original documents responsive to 9/11 commission requests during the Ma)’ 30, 2002 and July 18, 2003 vL~its to the National Archives. Nevertheless, the Justice Department’s representations to the 9/11 Conunission left the impression that Berger ‘s document theft was limited to what he admitted to taking.

On November 13, 2006, Committee staff interviewed John Dion and Bruce Swantz of the Justice Department. Swantz explained that a primary focus of their investigation was whether the 9/11 Commission was deprived of any documents.³⁶² ‘fhey concluded that it had not.³⁶³

According to Swantz, after conducting interviews with staff fi’om the National Archives, and after having the FB1 conduct a review of the document files that Berger

~ Id.

361 Senior Official 1 Report at 2; Joint Staff Interview at 3.

362 Interview by Gov’t Reform Comm. Staff with John Dion, Chief of the Counterespionage Section, DOJ, and Bruce Swartz, Deputy Assistant Attorney Gen., DOJ, in Wash., 1).C. (Nov. 13, 2006) [hereinafter Dion and Swantz Interview].

363 Dion and Swantz Interview.

50

examined \vitb the assistance of Archives officials, the Justice I)epartment concluded that there was no evidence of Berger taking any additional documents.~M ‘fhe Justice -l)epantment concluded that Berger took the documents for personal convenience.^36~ ‘fhe Justice Department was comforted by the fact that Berger was examining printed copies of c-mails and the documents that Bergen admitted to taking were all different versions of’ the same after-action report.³⁶⁶ The Justice Department apparently would have been more concerned if Benger took different documents instead of different versions of the same document.³⁶⁷ Swantz. said the Department concluded the after-action “documents he took were, in all probability, the only documents he took.”³⁶⁸ Dion told Committee staff that the aften-action reronts he took all existed elsewhere, and he was merely looking at copies, not originals.³ ~ Moreover, according to Dion, the after-action report documents were beneficial to the Clinton administration -- the documents portrayed the White 1-louse as being engaged on the subject of terrorism.³⁷⁰ I-lad the documents been damaging to Bergen on the Clinton administration, Dion stated that the Department might have taken a different approach.”⁷’

When asked by Committee staff how they could he so sure Bergen did not take original documents during his first two visits, Dion and Swantz explained that it was difficult to prove a negative.³⁷² ‘fhey stated that the Justice Department could not prove that he did not take anything else, but found no evidence that suggested he did.³⁷³ Dion and Swartz also stated that Bergcr established further credibility in his proffer by disclosing the embarrassing manner in which he stole the documents by stashing them in a construction site.³⁷⁴ Committee staff asked Dion and Swantz whether they ever polygraphed Berger pursuant to paragnaph 11(c) of Berger’s Plea Agreement which

364 Itt

365 Id.

367 Itt

368 Itt

369 It!..

370 Id.

s” Id.

372 Id.

~ Id.

~‘~‘ Id..

51

nequincs Berger to “voluntarily submit to polygraph examination.”^37~ i’hey said they did not.

The lack of interest in Bergen’s first two visits is disturbing. The May 30, 2002 document review was on the same subject matter as Bergen’s other three visits. Bergen spent May 30, 2002 looking at Richard Clarke’s original office files.³⁷⁶ I-lad Bergen seen a “smoking gun” or other document he did not want to be bnought to an investigatory panel’s attention, he could have removed it on this visit. The May 2002 research session by Berger was sufficiently critical to the 9/Il Commission’s document requests that on receipt of the official EOP requests, the Archives staffs first action was to pull the materials that had been set aside for Bergcr’s prior visit in May 2002.~~~

The 9/Il Commission reported that at least one memo written by Clarke contained Bergen’s handwritten notations. On December 4, 1999, Clarke advised Bergen to attack al Qaeda -facilities in the week before January 1, 2000. According to the 9/Il Commission, in the margin adjacent to this suggestion, Bergen rejected Clarke’s suggestion to hit al Qaeda and wrote “no.”³⁷⁸

The lack of interest in Berger’s second visit, July 18, 2003, is inexplicable. The FF31 told the Archives 10’s staff that no exçosurc existed because Bergen was under constant supervision by Senior Official 1.~ ~ This is troubling in light of Senior Official l’s statements that “she would never know what if any original documents were missing.”³⁸⁰ According to Bergen himself, Senior Official I spent time “working at her desk” while he reviewed materials on July 18, 2003.~~’ Bergen also said that on July 18, 2003 he received a “half dozen” phone calls where he was left alone in Senior Official l’s office.³⁸² Bergen admits to removing classified documents -- his handwritten notes --on July 18, 2003. The Archives 10’s memorandum following Bergen’s interview stated as follows:

At the end of the day, Bergen tn-folded his notes and put them in

his suit pocket. I-Ic took the opportunity to do this when [Senior

~ Plea Agreement at ¶3(c). 376 Joint Staff Interview at 3.

~ Joint Staff Interview at 4.

378 The 9/i 1 Report, Chapter 6, n. 11.

~ Brachfeld and Maltagliati Intenview, Dec. 1, 2006. 380 Senior Official I Interview I at 12.

~ Bengcr Interview at 3. 382 Bergen Interview at 3.

52

Ofiiciai 1] was out of her oFfice due to him being on a pnivate phone call.

The Justice Department was unacceptably incunious about Bcrger’ s Archives visits on May 30, 2002 and July 18, 2003. The Justice Department never notified the 9/i I Commission that Bergen viewed a large number of original documents on these first two visits. ‘f he Justice Department failed to subpoena Bergen’s medical records to determine if there was any medical reason for him to have white-colored material on his lower leg. The Justice Depantlnent failed to administer a polygraph examination.

The Justice Depantment failed to explain to the 9/Il Commission all the relevant facts about all of Bergen’s visits, especially his -first two visits where he had access to a lange collection of original documents. There is no basis for concluding that Benger did not remove original documents during his first two visits to the National Archives. It is not knowable whether Bcngcr removed critical documents responsive to the 9/Il Commission during these first two visits. Given Bcrger’s admission that he removed his classified notes during the July 1 8, 2003 visit, he certainly could have removed other classified documents. The Justice Department’s statement that Bergen’s statements are credible after being caught is misplaced. One would not rely on the fox to be truthful afler being nabbed in a hen house. The Justice Department apparently did.

C. Hiliman’s Public Statements Are Incomplete and Misleading; 9/11 Commission May Have Been Deprived of Original Documents

FINDING: The public statements of the former chief of the Justice Department’s Public Integrity Section, Noel Hillman were incomplete and misleading. Because Berger had access to original documents on May 30, 2002, and July 18, 2003, there Lc no basis for his statement that “nothing was lost to the public or the process.”

While the Justice Department’s investigation focused on the September 2 and October 2 visits by Berger, and Bcrger’s plea was based on documents he removed on these two visits, Department officials took the unusual step of publicly confirming their belief”-- which cannot be proven that the 9/11 Commission received all the documents they requested.

A Justice Department press release about Bergen’s guilty plea stated “[o]n September 2, 2003, and again on October 2, Bergen concealed and removed a total of five copies of classified documents from the Archives. The documents were different versions of a single document.”³⁸³ Speaking to the press at the time of Bergen’s plea,

383 Press Release, DOJ, Former Nat’l Sec. Advisor Samuel Benger Pleads Guilty to Knowingly Removing Classified Info, from the Nat’l Archives (Apr. 1, 2005) (on -file with Gov’t Reform Comm.).

53

Noel Fliliman, chief of the Department’s Public Integrity Section stated, Bergen “‘did not have an intent to hide any of the content of the documents’ or conceal facts from the commission investigating the Sept. ii, 2001, attacks.”³⁸⁴ On April 2, 2003, The New York Ti,ne.v wrote:

The department’s investigation had found no evidence that Mr. Bergen had intended to hide anything fi’om the Sept. 11 commission. Indeed, the commission had access to all the original reports on the 2000 assessment.^38~

Along similar lines, The Washington Post reported, “I--Iillman noted that Bergen only had copies of the documents not the originals — and so was not changed with the more serious crime of destroying documents.”³⁸⁶ I-Iillman also stated, “Nothing was lost to the public or the process.”³⁸⁷

Hillman ‘s comments were incomplete and misleading. The Department’s investigation and I3enger’ s plea agreement were limited in scope to the documents he admittedly removed on September 2 and October 2. Bergen, however, had access to original materials on two other visits to the Archives, on May 30, 2002 and on July 18, 2003 388 While the Justice Department had convinced itself that I3ergen had not taken any documents beyond what he admitted to, and although they asserted that they had found no evidence to suggest otherwise, it is impossible to know whether this is true.

I-Iillman knew that Justice Department officials had not told the 9/11 Commission that Bergen had had access to original documents. I-Ic attended at least two meetings with officials from the Archives IG’s office, the purpose of which was to discuss obligations to the 9/li Commission. Archives 10 officials were steadfast in their belief that the Justice Department had an obligation to notify the 9/11 Commission of all relevant facts, notably that Bergen spent two days at the Archives reviewing large quantities of’ original, uncopied, unique documents. i-human was present on November 5, 2004 when John Dion and I3nucc Swartz confirmed to Bnachfcld that the 9/1 1 Commission never was told Bergen had access to originals. Fhillman was present on November 23, 2004 when Official A’s c-mail to Senior Official 1 was read. Official A, one of four Archives staff

384 Carol I). Leonnig, Bergen Is Likely to Face Fine, WA5I-!. Post Apr. 2, 2005, at AS

[hereinafter Leonnig Apr. 2, 2005 article].

385 Fnic Lichtblau, Clinton Aide Pleads Guilty to Taking Secret Popei-’.s’, N.Y. TIMEs, Apr.

2,2005, at AlO.

386 Leonnig Apr. 2, 2005 article.

387 Johanna Neuman, Top Clinton Aide Admits he Pilfered Documents, LA ‘fiMas, April

2,2005, at Al.

388 10 Report at 5.

54

members with a security clearance high enough to handle these classified documents a secunity cleanance higher than that of Bergen’s own former deputy National Secunity Advisor — notified Senior Official I that he saw what he thought wenc white papers lodged in I3crgcn’s socks. i-Iillman, himself, conducted an interview of Senior Official 1. ln September 2004, Senion Official 1 had stated “she would never know what if any original documents were missing.”³⁸⁹ Nevertheless, 1-lillman’s public statements did not account -for these facts.

Committee staff called I-lillman, now a United States District Judge in Camden, New Jersey. i-Iillman declined to make himself available for an interview.

D, 9/11 Commission Relies on Assurances by the Justice Department

FINDING: The 9/11 Commission relied on assurances from the Department of Justice that a full and complete production was made, and that no original or any other responsive documents were withhekt No one told the 9/11 c’onimission that Berger had access to original documents. The 9/11 Conunission was spec jfically interested in the office files of White House terrorism advisor Richard clarke, and never was told that Berger had access to clarke’s original office files on May 30, 2002, and July 18, 2003.

Access to White House documents was a critical component of the 9/li Commission’s investigation.³⁹⁰ The Commission was interested in understanding the terrorism-related considerations at the White F-house before September 11, 200 1.391 Under agreements reached with the incumbent White House, the Commission was to obtain all relevant staff-level documents, up to but not including, documents prepared -for the President.³⁹² These were considered protected by executive privilege.³⁹³ The incumbent White 1--house was concerned that any concession it made to the 9/11 Commission would establish precedent.³⁹⁴

389 Brachfbld and Maltagliati Interview, Dec. 1, 2006; See also, Senior Official I interview I at 12. (“Senion Official 1 advised that Mr. I3erger was served originals on his July 18, 2003 visit. She would never know what if any original documents were missing. There was no absolute way to verify if any originals were removed.”

390 interview by Gov’t Reform Comm. Staff with i)an Marcus, Gcn. Counsel, The 9/11 Comm’n, in Wash., I).C. (Dcc. 8, 2006) [hereinafter Marcus Interview].

391 Marcus Interview.

‘~ Id..

~ Id..

55

According to Philip Zelikow, the Executive Director of the 9/il Commission, the Commissioners and sta-ff conducted a “lengthy amid detailed private intenrogation \-vith Mn. Bcrger.”^39~ This interview took place on Januany 14, 2004.3)6 ‘Fhe Commnission took public testimony fromn Berger on March 24, 2004,~~~

One area of particular interest to the 9/11 Commission was the papers of terrorism adviser Richard Clarke.³⁹⁸ According to 9/Il Commission General Counsel Daniel Marcus, Clarke was a prolific writer of reports and c-mails.³⁹⁹ Clarke generated a huge volume of written material.⁴⁰⁰ The Commission was interested in seeing Clarke’s files.”°~ We were “very interested in draft reports with handwritten notes,” Marcus explained.⁴⁰²

According to Marcus, the Commission staff believed Berger never changed anything in Clarke’s memos and papers, he just passed thcm on up the line.⁴⁰³ The mechanics of the agreement the Commission had with the White I-louse allowed -fon production of all documents unless the White F-house could demonstrate affirmatively it was actually shown to the President.⁴⁰⁴ The Commnission staff believed they were able to sec many documents that were likely shown to the President, as long as there was no overt evidence to prove that the President actually looked at the papers.^40~

~ Telephonic Interview by Gov’t Reform Comnm. Staff with Philip Zelikow, Fxcc. Dir., The 9/11 Comm’n, in Wash., T).C. (Jan. 8, 2007) [hereinafter Zelikow Interview].

396 The 9/li Report, see notes at 479-509.

~ The 9/11 Comm’n (March 24, 2004) (testimony of Samuel L. (sic) Bergen);

~ (last visited

Dec. 17, 2006).

398 Marcus Interview.

~ Id..

400 Id

40! Id,.

402 It!..

403 Id..

404 Id..

405 Id..

56

9/li Commission Co~Chains Tom Kean and Lee 1-lamilton became awane I3em’gen was under investigation by the Justice 1)epartment in early 2004. In their book, they describe the following:

Judge Gonzales [then White F-louse Counsel] called both of us \-vith strange news: Sandy Bergen was under investigation by the Justice I)epantm~ent- -for taking highly classified documents . , , . The documents in question included an after-action report prepared by Richard Clarke that assessed the Clinton administration’s response to terrorist thm’eats accompanying the mnillennium celebrations.⁴⁰⁶

Marcus confirmed this account, and explained that Lee i-Iamilton advised Zelikow and him of what Gonzales had ncponted.’~°⁷ As Zclikow remembers, they were not aware of the Bengcr investigation at the time o-f Bergen’s private interview on January 14, 2004, but learned of it sometime before his public testimony.⁴⁰⁸ Zelikow wished the Commission had known earliem’.⁴⁰⁹ While they would not have con-fronted Bcrger about the allegations, Zelikow said “they could have reflected on it” and it could have affected the credibility of I3ergen’s answers.⁴m⁰

Marcus was separately advised of the Bergen matter by Dion. As Marcus recalls, Dion was the designated official within the Justice Department to discuss the l3erger matter with the 9/il Commission staff⁴¹ I Marcus told Committee staff that shortly after Hamilton told them I3engen was the subject of a Justice Department investigation, he received a call from Dion,⁴¹² Dion remembers this differently. As Dion recalls, the first communication to the 9/il Commission staff was through Daniel Levin, the Justice Department’s liaison to the 9/Il Commission.⁴¹³ As I)ion recalls, the finst he spoke with Marcus was at a meeting in Dion’s office at the Justice h)epartment.⁴¹⁴ The date of the meeting, according to Justice Department Criminal Division officials was April 1 6,

406 Kean & Fiamilton at 183.

407 Marcus Interview.

408 Zelikow Interview.

409 lii

411! Id.

41! Marcus Intervie\v.

413 Dion Telephonic Intem’view.

414 Id..

57

₂₀₀₄,m IS Dion does not specifically recall the date of the meeting, hut said it may have oecunrcd bcfom’c I3enger’s public testimony on Manch 24, 2004,416 According to Marcus, he told l)ion the 9/1 1 Commnission was concerned that they may not have gotten all required documents.⁴¹ Dion told Maneus the Department was planning to look into it.’°~

At some point, and Marcus cannot recall specifically when, Dion called and reported that the Dcpartmncnt was assured the 9/il Commission had received everything it requested.”^tm9 l)ion explained to Marcus that Bergen had taken several versions of the same document.⁴²°

Dion did not tell Marcus enough. In his discussions with Dion, Marcus observed it was Dion’s practice to confer as little information as possible.⁴²¹ According to Marcus, “Diorm is not an expansive guy when talking about pending investigations.”⁴²² With that said, Marcus did state that he “was led to believe Bergen was not shown any unique documents.”^42~ Marcus believed i3erger had been given copies of documents, on if originals, he thought the Archives bad a copy, so he did not think Berger saw anything “unique.”⁴²⁴ Marcus was confident they received all responsive documents because that is what the Justice Department told him. The Justice Department did not tell Marcus t-hat Bergen had access to originals.⁴²⁵ When explained by Committee staff that Benger had access to original documents on three visits to the Archives, Marcus was surprised, and acknowledged that he did not know that.⁴²⁶ Marcus said if they bad been told he had access to original documnents, it would have raised concerns.⁴²⁷

415 Id..

416 Itt.

417 Marcus Interview.

41$ Id..

419 Id.

420 It!..

421 Id.

422 Marcus interview.

423 Itt.

424

Itt.

‘125 Id..

426 Marcus Interview.

427 Marcus Interview.

58

According to Dion, be never discussed with 9/li Commission officials whether Bergen had access to original documents.’^tm28 Dion told Commission officials that their investigation showed no reason to believe that the 9/il Commission did not get all the information they sought.⁴²⁹ Committee sta-ff asked Dion how the Justice Department could be so assured that no other original documents wene nemoved by Bergen, and Dion responded that it was “a fain inference” to draw fl’om the type of investigation that was being conducted.’¹³° I)ion, “does not specifically recall” how extensively Bergen was questioned about stealing other documents.”³¹ Comnmittee staff asked whether l3engen was questioned about the first two visits, and Dion replied, “I expect that he was, but do not have a specific recollection.~~~tm³²

Zclikow told Committee staff that the 9/Il Commission staff was highly concerned about the completeness and integrity o-f the document production from the White House.⁴³³ Zelikow said that whenever a concern was raised that the Commission had not received a complete production in response to its document requests, “We followed up energetically.”⁴³⁴ For example, he said, Bruce Lindsey and Sandy Berger realized that certain documents had not been produced.⁴³⁵ During the course o-f discussions with Bergen and Lindsey, it became apparent that there were documnents about whether President Clinton had authorized covent actions against Osama bin Laden⁴³⁶ In response to this, a team of 9/Il Commission staff arranged to have an exhaustive document review at the National Archives.⁴³⁷ For 1 8 hours, Zelikow and other Commission officials reviewed materials at the Archives.⁴³⁸ This process, according to Zelikow, produced several important nuggets for the Commission’s Final Report.⁴³⁹ Zelikow used this anecdote to show that the Commission went to great lengths

428 Di on Telephonic Interview.

429 Id..

430 Itt.

431 Itt.

432 ltt

~ Zelikow Interview.

‘°‘~ Itt.

~ Id..

~ Id

⁴³⁸Id.

⁴³⁹Id.

59

to ensune they had seen all nesponsive documents.⁴⁴° I-ic said, “if we had any clue about something that was missing om’ incomplete, we hit it very ham’d.”⁴⁴¹

Zelikow said the Justice Department told themn that Bergen removed different versions of the Millenniumn Alert A-ften Action Report, and based on these discussions the Commission believed this was the scope of the damage.⁴⁴² The Justice Departmnent represented to Zelikow that they believed they had accounted for all the documents Bergen had stolen.⁴⁴³ The I)cpartment of Justice never advised Zelikow’ that Bergen had access to original, uncopicd materials.⁴⁴⁴ If Zelikow had understood that there was a potential for Bergen’s actions to have gone beyond just the Millennium Report, it would have been a “grave concern.”⁴⁴⁵ If Zclikow had known Bergen had such broad access to original documents, he would have wanted greaten assurances from the Department of Justice that they had delimited the sco₁e of Benger’s removals and defined the extent o-f the dalnage to the document requests. 46

In their hook, Kean and I-hamilton confirmed what Marcus said about the Commuission relying on the Justice Department. On this subject they state:

From our standpoint, the primary matter of concern was: FIad we seen all of the documents we needed to see? ‘I’he answer to that question was yes. ‘fhe Justice Department assured us that copies of the documents in question had been sent by the Archives to the White Hhousc, amid then mnade available to the Commnission.⁴⁴⁷

When the Berger mnatten became public, Kcan and Flamilton stated they had to explain to the media what the Department of Justice had assured them, “that the Commission had seen all of the documents I3erger had removed because several copies had been made beforehand. ,,4’1$

440 Id..

‘m4m Id..

442 ItI

‘°~ Id.

44’I Id

“~ Id.

446 Id..

‘~“~ Kcan & Fhamnilton at 183.

448 Id.

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It is now clear that this conclusion is limited only to those documents Berger was known to have taken. It does not ncficct at all the veny real possibility that he took other documents.

VU, ConcDus~on

The country may never know the full effect of Bcm’ger’s misconduct. 1-Ifis deliberate calculating actions to remnove highly classified documents compromised the national security of this country in more ways than one. 1-us unauthorized removal of documents by itself is sanctioned by the criminal law, and he has been prosecuted. ‘Fhe temporary abandonment of highly classified documents at a construction site could have resulted in the disclosure of sensitive material to oun enemies. That is why we pm’otect classified documents and require that they he handled in very restricted circumstances.

Bergen’s misconduct took advantage of serious weaknesses in controls over classified documents, including weaknesses in the proper response to the discovery o-f the unauthorized remnoval of such documnents. The failure to bring in law enfom’cement early in the process has left open questions about the scope of Bergen’s actions. Because he had access to original uninvcntoried documents during two of his visits, he was in a position to remove original documnents withoat being detected. Early involvement o-f law enforcement mnight have found additional documents on might have given sound reasons for concluding that no other documents were taken. Instead, Bergen was notified about the mnissing documncnts, and he pled guilty to the unauthorized removal of documnents that he was caught removing even before law enforcemnent was notified.

Finally, in an era where information sharing is a critical watchword for preventing terrorist attacks, no one shared infonmnation with the 9/11 Commission regandimig the full scope of Bergen’s possible mnisconduct. Indeed, the Justice Depantmcnt’s assurances to the 9/11 Commission and the public plainly suggested that the Departmnent was able to conclude that Bergen did not take other documnents. The Justice Department did not know and could not have known whether Bergen took other documents. Representations to the Commission and to the public wcm’e incomnpletc and muisleading, preventing the public and the Commission fm’om properly weighing and evaluating whether I3ergem” s access to original documncnts could have influenced the Commission’s findings.

Perhaps the 9/1 1 Commnission would have concluded that Bergen’s access to original documents did not result in any additional missing documents and therefore had no impact on the Commission’s work. But the Comnmnission should have been put in a position to reach that conclusion on its own. But without timely disclosure to the 9/li Commission of the complete facts surrounding Berger’s misconduct, that question will unfortunately remain unanswered.

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