Asymmetrical Information

Question: Will it take longer to find the papers Berger "inadvertantly" removed than it took to find the Rose law firm billing records?

Enquiring minds want to know.

John Solomon wrote in AP:

Berger and his lawyer said Monday night he knowingly removed the handwritten notes by placing them in his jacket and pants, and also inadvertently took copies of actual classified documents in a leather portfolio.

Jane Galt writes, adding the identified creative elaborations:

This is not, in fact, what Mr Berger has said, but what I'm more entranced by is that someone actually had the guts to go on the radio and proclaim that Clinton's former national security advisor had "indavertently" stuffed a [1 large number] of classified [2 documents] [3 down] his trousers.

See, this is how we play right-wing "Operator." I'll add my three:

"... [4 which he sold] [5 to the red Chinese] [6 to pay a phone-sex bill] ..."

Join the fun!

"... [7 to Hillary Clinton] [8 that he had run up on John Kerry's tab] [9 speaking only French] ..."

We can all play!

"... [10 while plotting to nationalize health insurance] [11 with Michael Moore] [12 and John Kerry's intern paramour] ..."

Real question:

Which will take longer: whether a crime was committed in Berger's document lifting case or the outing of a CIA agent.

Setting aside all the partisan gloating and poo-pooing they both deserve to be settled, not swept under the rug.

It appears that this investigation began last year and Berger has said nothing about it (even though his is advising a presidential candidate, DOH!) and of course no one "knows" (wink, wink) who outed Plame. Both situations are about CYA, not taking responsibility for the problems.

Same as it has been, is and will be again.

Alkali,
I don't blame you for hoping the topic can be dismissed with a wave of a hand. The weather being what it is do you mind if I stand in front of your hand while you do it? It's always good to have a nice breeze and you're going to have to wave your hand real fast for real long if you think it's gonna work. ^_~

J. Swift,
Actually, the real question is whether Plame was justified in trying to use the classification system to try to hide such a blatent piece of nepotism. But given that she and her occupation were already listed by Joe Wilson in his "Who's Who" entry before this began I hardly consider it her work to be all that classified. Did Joe Wilson have any qualifications for his job beyond the ability to sip tea in a dainty manner? If abuses of the system of the sort that Valerie Plame indulged in will occur anyway perhaps we should rethink the civil service system entirely.

But thank you for reminding us that Joe Wilson is also imploding. ^_~

- S.P.M.

I don't know Jane. "[K]nowingly removed the handwritten notes by placing them in his jacket and pants," sounds like legalspeak for "he put handwritten notes in his pockets." If he actually stuffed paper down his pants, that seems tacit admission that he knew what he was doing was wrong. But why, then, admit "knowingly"? If he put the stuff in his pockets ... well, who cares? Perhaps you'd stuff things elsewhere, but I think that's a matter of personal prediliction, don't you?

Yes, this was a "malicious leak" ... as opposed to, say, Joe Wilson's benevolently intended anonymous leaks to Nick Kristoff.

In each case Josh Marshall should be concerned more about the *truthfulness* of the leak than the motivation behind it.

After all, there are only two kinds of leaks in politics -- malicious ones (about the other side) and self-serving ones (about oneself).

"he knowingly removed the handwritten notes by placing them in his jacket and pants"

That is, being that it was illegal to remove the notes, he knowingly did something illegal.

"and also inadvertently took copies of actual classified documents in a leather portfolio. "

And, although it was certainly illegal to remove orginals, he placed them in his portfolio? Then inadvertantly took them home in it? And, if one believes news reports, thereafter inadvertantly actually lost some of them? Have I got that all right??

Why did he place what he couldn't remove in his portfolio?

I'm willing to believe this is all fairly innocent if incredibly stupid error. But as others have noted, if one side wants to attribute nefarious partisan motives to the leaking of the (true) information -- as if it would be better for the world not to know -- then it is perfectly fair for the other side to attribute nefarious partisan motives to the taking of the information (and losing of it!).

I'm trying to imagine the howling we'd be hearing if one of Cheney's associates or underlings just happened to inadvertantly take and *lose* such documents.

Imho Wilson is being attacked for political reasons. Dont want to beat a dead horse, but he was very credible defending his position on Blitzers Sunday morning show.

Berger is more troubling to me. Im waiting for more info before reaching any conclusions, but the questions I would like answered are these. We've heard Berger hid classified documents in his socks, down his pants, in his jacket, and in his binder. In fact, the binder apparently contained the only original documents taken. It seems incredibly stupid of Berger to hide any documents in his binder if he anticipated it being searched, which is what the documents hidden in his clothes suggests was his thinking.

If employees at the archive observed this behavior why wasnt he detained, or at least requested to stay at the building until whatever authorities who had jurisdiction could perform a search?

Why were details of this event just leaked yesterday, rather than at the time of the supposed theft? Media speculation suggests its because of the release of 911 commissions report on Thursday. C Mathews interviewed Bob Graham on Hardball this evening, and Graham stated the commission recieved copies of the Berger documents in question, and further stated that while these documents may be embrassing, they had nothing to do with national security issues and shouldnt have been classified.

Isn't it possible the inadvertent comes purely from a desire to "enhance" his package? I mean, maybe a sock wasn't available (as rumor has it, more documents were there). After all, he was a Clinton staff member. Maybe he was only trying to impress Jamie Gorelick.

My spin would be Sandy had a bad attack of irritable bowel syndrome while in the reading room and had to stuff some sort of paper down there. That also would explain why some of the documents still can't be located...

Doesn't matter if Joe Wilson is lying sack of camel dung (which it appears he is, as well as arrogant), he is not the person who outed his wife. That occurred in some other place, time and manner (via Novak). Still needs investigated and truth gotten to as violations of national security and the law.

"Imho Wilson is being attacked for political reasons..."

Well, sure, in the context of raking in the bucks selling "The Politics of Truth" on 60 Minutes and all, receiving the Ron Ridenhour Award for Truth-Telling, hosting the restorehonesty.com web site, etc. & so on, near ad infinitum for the past year.

When you sell yourself as Mr Truth and it later comes out your truth consisted of "rhetorical flourishies" based on faulty memory and mis-statements about documents you never saw, well, you've got to expect that for all the money and fame you've earned you've also well-earned a little flak.

"It seems incredibly stupid of Berger to hide any documents in his binder if he anticipated it being searched, which is what the documents hidden in his clothes suggests was his thinking."

Yes, yes it does. And it doesn't indicate any apparent coherent innocent explanation or defense either. Very odd.

As somebody on another site wrote, (I've already forgotten where or I'd give credit): 'Who illegally sneaks out copies of national security information? Spies. Who would he be spying for? Kerry, let us hope ...'

I'm hoping there is a non-criminal explanation for this, and my experience as a lawyer tells me there often is in such cases -- but it's hard to imagine a non-very stupid one.

"Why were details of this event just leaked yesterday, rather than at the time of the supposed theft? Media speculation suggests its because of the release of 911 commissions report..."

Political leaks are timed?? OMG!! What if the Democrats should ever get that idea ...??? ;-)

Both the NYT and the WP are reporting that Berger took copies, not originals.

There goes one GOP talking point...

"Doesn't matter if Joe Wilson is lying sack of camel dung (which it appears he is, as well as arrogant), he is not the person who outed his wife."

It certainly does matter. Let's assume the wife was a class of operative intended to be protected by the relevant statute, which is not at all self-evident.

If Joe was acting as a lying sack of camel dung and people in the government knew it, and one of them leaked to Novak about the Mrs. with the *intention* of explaining how this lying sack of camel dung could have gotten into a position to be able to cause so much trouble -- nepotism -- *instead* of with the intention of outing a confidential agent and putting her at risk of her life as punishment for Joe's actions (the Democratic party line for the past year) then there is no felony.

Intention matters with this law, as with most criminal law. The law was written to prevent a future Philip Agee from going around intentionally systematically exposing US secret agents (intentionally getting them killed). That kind of intention is necessary for a crime under it. An incidental revelation with no such intention in a domestic political dispute that creates no such risk to anyone won't make that grade. So we shall see.

BTW, did you enjoy the picture of Valerie posing as a model in the sports car in Vanity Fair?
http://www.slate.com/id/2091907

There's nothing like a stylish self-outing! Any federal grand jury will no doubt admire it too.

"Plame's extended striptease, enthusiastically barked by her husband, now has Chatterbox wondering how much of Wilson's story to believe. (It also has Chatterbox wondering when the couple will start renting themselves out for birthday parties.)

"Regardless of the merits, this photograph will surely give the Bush Justice Department whatever slim justification it seeks in dropping its Plamegate investigation."

They'll just wait for the right time. On the face of both cases as they stand today, it seems probable that Berger's in more trouble than whoever outed Valerie.

Jim,

Where on earth did you get that? From the WSJ editorial page (which you seem to have copied verbatim)?

I may be wrong but everything I read indicates that intention is utterly irrelevant. So long as the outing is done 'knowingly' then the law is broken, no matter what the reason to do so. There is no "gee, I just wanted to prove nepotism" exception clause in the statute.

And let's try to get our facts straight, shall we? It has been reported several times that there was no nepotism and CIA officers have again this week confirmed that his wife did not offer his name and only mentioned him in a memo when asked by her superiors if he would go.

Plus I always wondered what the nepotism was. He wasn't paid anything other than expenses, AFAIK.

"Both the NYT and the WP are reporting that Berger took copies, not originals."

GT: doesn't matter. A copy of a classified document carries the same classification as the original. What's classified is the information content, not the physical representation. It also doesn't matter how the copy is made. If you're working with classified and you've made copies, it's your responsibility to account for those copies, all of them, before you leave the secure area. You can dispose of them (generally, shred them or burn them), sign them in as working papers, or courier them (if you've got a courier letter) to some other secure facility, where the copies get the same level of protection as the originals. Generally speaking, a clearance comes with an affirmative responsibility to safeguard classified information at all times. You don't just walk out the door with the stuff, and then lose it, and then beg off because it was "inadvertent" (at least folks at my level don't. Berger will probably get away with this, same as did John Deutsch.)

"Intention matters with this law, as with most criminal law."

I'm pretty sure that "intent" in crim law is significantly more limited than what you are claiming. It's something closer to intending to commit the act - meaning speaking - and not the result - meaning revealing the confidence.

I walk right through the door and I walk right through the door.
Hey all right!
If I get by, it's mine.
Mine, all mine!

You go Jane!

I have wondered whether 'pants' might be construed as pockets (although you would expect his lawyer to say the latter), but what about socks?

Berger and his lawyer said Monday night he knowingly removed the handwritten notes by placing them in his jacket, pants and socks, and also inadvertently took copies of actual classified documents in a leather portfolio.[emphasis mine]

Get yourself under control, Jim.

I'm trying to imagine the howling we'd be hearing if one of Cheney's associates or underlings just happened to inadvertantly take and *lose* such documents.

And I'm trying to imagine how fiercely you would be defending Cheney, misinterpreting statutes, arguing that it was done for a good reason, etc.

Let's assume the wife was a class of operative intended to be protected by the relevant statute, which is not at all self-evident.

It's not? Then why did the CIA raise hell? Why is DOJ investigating? Why did the White House stonewall? The murderer may get away, Jim, as you seem to want him to, but that doesn't mean there's not a body.

Wilson lied about nothing. His wifes mention of his qualifications in the memo were requested by her superiors. Wilson doesnt claim to forget seeing anything. The conclusion that Wilson is being criticized for not making is that Iraq was seeking Uranium from Niger is based on the fact 75% of Nigers exports are Uranium, and the Niger PMs comments on Iraqs supposed interest in Uranium is also based on that fact. Noone involved has claimed that any agent of the Iraqi government ever enquired about Niger Uranium.

It now seems Berger stuffed nothing down his pants, or in his socks. According to GOP strategist D Gergan, the claims have now changed to that Berger violated Archive rules in not having the notes he took from the documents cleared by Archives staff. Those notes are now described as the only thing Berger put in his jacket pockets. Gergan further states the missing documents were copies, the originals are still in the archives possession, so much for the 'destruction of embrassing documents' accusation, and its now much easier to see those documents going into his binder were nothing more than a honest mistake. The strange aspect of this story is that the archive employee that has made these claims now states that Bergers took documents on three different visits. This employee claims to have numbered documents on two occasions after first observing Berger remove document copies, and on each occasion the employee claims document copies were again removed by Berger. This begs the question why wasnt law enforcement notified the first time document copies were missing. It should also be noted that Berger wrote the original documents in question, and was refreshing his memory 2 days prior to appearing before the 911 commission.

Joe,

So? You completely missed my point. I never said that Berger did not commit a crime or that the fact that he took copies made it less of a crime.

What I said was that "there goes one talking point" referring to the idea that Berger stole the documents to destroy evidence of something. Without that Berger may still be criminally liable but the political impact is dramatically reduced.

Mindles,

That's why you shouldn't rely on Fox News for your information. Berger's lawyer specifically denied the 'socks' accusation.

First, current reports are that he took all the copies of drafts of a memo regarding the millenium anti-terrorist resposne (though with the amazingly crappy reporting in this case who knows.)

Second, there seems to be the idea that taking 'only' copies couldn't be an attempt to hide something. In cases with a roomful or more of documents (and this is certainly one), taking the most accessible copies can be almost as good as destroying the originals--especially if you are the only one who really knows what to look for.

GT: I can't find the link now, but the latest I've heard is that Berger admits putting his handwritten notes in his socks and jacket and the actual documents or copies of them (not clear which) in his leather portfolio. If his lawyer is denying that Berger put any "documents" in his socks, that's the kind of lawyerly evasion intended to fool the unwary (such as yourself) into thinking that he put nothing in his socks.

Now if I could only remember which blogger made this point already . . . .

Lilkes, as usual, says it best:

But let’s play everyone’s favorite game, "What if He Was a Republican?” Imagine Dick Cheney caught filling his socks with documents on pre-9/11 security procedures. Imagine a hidden camera snapping shots of Condi slipping secret memos in her foundation garments. We wouldn’t be hearing about impeachment, we’d be debating the probity of rolling a guillotine towards the White House, and whether the heads should be arranged alphabetically on the fence spikes, or by seniority.

I invoke Jane's First Law.

Y'all are bonkers.

I cant find a source for the Gergan interview that was aired yesterday, but this page www.msnbc.msn.com/id5463586 touches the same main points. The document copies that are missing are all from the same document, and is a very positive review of the millenial terrorist investigation. Yesterday there was news that a document dealing with safety of our ports from terrorism was also reported missing, but I can find no new mention of it.

If we're playing what if it was a republican consider these what if dem scenerios. What if right after the Okie City bombing Clinton OKed Mcveighs family flight from our jurisdiction prior to being questioned by the FBI? Or what if Clinton went into Kosovo and found no mass graves or other examples of Serb ethnic cleansing? What would have happened to Condie Rice on Sept 12 01 if she was a white male dem?

I love it watching the punditry spin one fact into their respective parties' talking points

k this is seriously pissing me off. national security issues are just being treated like another political football.

the US should use Roman discipline with respect to national security. Back in the day, if you were guarding a post in camp and fell asleep, you would be executed. This arose from the fact that as a guard you held the lives of hundreds if not thousands of men in your hands.

People with access to classified documents hold the lives of millions in their hands. They should be punishable in all cases to severe and Draconian penalties for mishandling them. This isn't a partisan thing, rather its a national security issue. Security is treated cavalierly, with no one respecting the laws or the people that protect the nation. Any misbehaviour with respect to classified information, especially code-word top secret information, should result in a swift application of the death penalty (perhaps summary eecution).

Why are we just letting both sides get away with this bs? Treat national security like it is vitally and critically important to our lives, the fact that there are thousands, if not hundreds of thousands, of islamist terrorists whose goal is the annihilation of western civilisation. No more of this complete lack of seriousness or realization that we are in an existential fight for survival.

This is war baby, and we are going to lose if we treat this horrible piece of news as anything other than a reason to execute Sandy Berger with extreme prejudice and then get back to eliminating the enemy.

"Jim, Where on earth did you get that? From the WSJ editorial page (which you seem to have copied verbatim)?"

From being a lawyer who's read the statute and is familiar with the background of it, which is not exactly a deep, dark, hidden secret. I dunno, maybe the WSJ had a lawyer explain it to them so they came to a similar opinion. That would be a remarkable coincidence, eh? But I'm not an authority in that area and as I said, we shall see, right?

BTW, did you get around to enjoying the picture of Valerie outing herself in Vanity Fair? When the grand jurors consider how she was so afraid for her life if identified, they'll be impressed no doubt.

As they will when they hear the tape of Joe on Imus last October explaining why he didn't say anything about "the leak" until so long after it happened: "I: So why did you not say anything about it until September? You're saying a lot now but you didn't say much about it in July or August. Why not? ... W: It didn't occur to us at the time .... I: How could it not have occurred to you? .... W: We were involved in other things ... I: Well, how did it occur to you two months later? ... W: Somebody explained it to us... I: Somebody *explained* it to you???...."
~~~~~~~~~

"I'm pretty sure that 'intent' in crim law is significantly more limited than what you are claiming. It's something closer to intending to commit the act - meaning speaking"

The intent "to commit the act" of killing someone doesn't get anyone convicted of murder, or even homicide. People who have intentionally committed the act of killing others walk free every day. The motive that drives the intent to commit the act -- self-defense, protection of another, mistake, theft, hatred, revenge -- has a certain relevance. 'Mens rea' is a rather standard requirement for criminal culpability.

And I'm having a hard time recalling anyone who was ever criminally convicted just for "the act of speaking", no matter how intentional.

" I'm trying to imagine how fiercely you would be defending Cheney, misinterpreting statutes, arguing that it was done for a good reason, etc..."

Enjoy your imagination, but I wouldn't be -- I'm not a Republican and don't subscribe to the popular notion that each political side must demonize the other while in every possible way rationalizing away its own people's faults into nothingness, as you apparently do and project onto others.

"' Let's assume the wife was a class of operative intended to be protected by the relevant statute, which is not at all self-evident.'

"It's not? Then why did the CIA raise hell? Why is DOJ investigating? Why did the White House stonewall?"

You're kidding, right? Do you really believe every investigation concludes a crime was committed? That it is itself proof of the thing it is seeking proof of?

And that in *Washington* every investigation and every *stonewall* is proof of a felony? Geeze, then Bill Clinton must have been Machine Gun Kelly. ;-)

So do you work the same logic in that direction too?

"The murderer may get away, Jim, as you seem to want him to, but that doesn't mean there's not a body."

Ah, there again is the liberal fondness for assuming criminal guilt without trial, or even charges. I've seen a lot of that around lately. Not to mention the SOP of projecting evil motives onto others.

So are you going to assume Berger is guilty before trial or charges too?

I've already said above that I won't be surprised if some non-criminal (as opposed to non-stupid) explanation for his actions emerges with a little time. But you may be more intolerant of apparent wrongdoing than I am.

Jeebus, what hair-splitting.

Dick had it right, "The first thing we do, let's kill all the Lawyers"

You're kidding, right? Do you really believe every investigation concludes a crime was committed? That it is itself proof of the thing it is seeking proof of?

Jim,

I told you to calm down. Of course every investigation doesn't conclude that a crime was committed. But a great many investigations begin with pretty clear evidence that a crime was committed, and focus on who committed it. If you find a body riddled with bullets it's pretty likely there was a homicide. That does not mean it's known who did it. You seem to be conflating the two questions.

Ah, there again is the liberal fondness for assuming criminal guilt without trial, or even charges. I've seen a lot of that around lately. Not to mention the SOP of projecting evil motives onto others.

Saying "X was murdered" is not the same as saying "Y murdered X." I would have though they covered that in law school, but I guess not.

My point is that if Plame were not a protected operative the CIA would know it, and would have been unlikely to complain to begin with. And even if they did DOJ would figure it out pretty quickly and drop the investigation.

As far as the stonewall is concerned, all I can say is that the White House, despite promises to cooperate, tried to hide something. Was that criminality or stupid vicious behavior? I don't know, but it's one or the other.

There's nothing like a stylish self-outing!

Why does that matter? Once she's been outed she's out. You claim not to be a Republican, but you sure have their irrelevant talking points down pat.

Jim,

You didn't answer the question. I am not a lawyer, much less one specialized on national security, but I do remember the debate when this first came out. And I remember many sites posted the relevant statutes. Nowhere did I see anything about an intent exception. This sounds made up to me, made up by the WSJ (which provides no evidence that that's how the law works) anbd repeated by others. If you are a lawyer you should be able to find the statute and show us where it says that the intent of the leaker makes a difference.

Again, I'm quite willing to be proven wrong if you have anything to back up this claim. But the burden of proof in this debate is on you and the WSJ that are advancing this strange idea. After all the CIA referred this to the DoJ, the DOJ began a preliminary investigation, it then became a full investigation and then a special prosecutor was named who has been investigating this for months. You think NOBODY in this whole group realized there was an intent clause all this time? It makes no sense.

As for VP in Vanity Fair while it may (or may not)make the prosecution more difficult it is utterly irrelevant to the point of whether a crime was committed. She had already been outed at the time. The people who were not supposed to know she worked for the CIA (foreign governments) already knew. She could have appeared in Playboy and it wouldn't have changed anything.

In short, I'll let the investigators who continue to look into this tell us if a crime was committed or not. But unless you or the WSJ have found something no one else has the idea of a intent exception to this statute sounds like made-up nonsense.

Dr Weevil,

If you or anyone else can find the link I'll certainly look at it. In the meantime I'll rely on the press reports that say the exact opposite.

Begbee,

It was YOUR GUY that let Osama's family go after 9/11. Bush was NOT involved. Clark, who is now part of the John Kerry troupe, made the decision and did not pass it up to Bush.

This is what happens when you take F911 as an accurate description of what has been happening in the WoT.

Your willingness to suspend judgment does you credit, Counselor. But if it was all just bumbling rather than deliberate malfeasance, where's the J. Bradford DeLong post titled "WHY DID I WORK FOR THESE IDIOTS?"

Jim Glass wrote:

Enjoy your imagination, but I wouldn't be -- I'm not a Republican and don't subscribe to the popular notion that each political side must demonize the other while in every possible way rationalizing away its own people's faults into nothingness, as you apparently do and project onto others.

Well put and other than the part about not being a Republican, the same goes for me as well.

As far as the topic at hand, there does not appear to be any doubt about the key facts that (a) Sandy Berger knowingly and illegally removed classified materials on multiple occasions and (b) at least some of these materials were destroyed. Whether these were originals or copies or drafts,* what they contained and who they help/hurt, and whether “in his pants” means “in his pants’ pocket” while interesting fodder for political speculation, really isn’t what’s important. He apparently broke the law and should be prosecuted to the fullest extent.

* There seems to be some ambiguity in the coverage and I think it is entirely possible that someone is saying “copies” when they mean “drafts” even though they aren’t quite the same thing. If I were trying to do damage control as Berger’s lawyer, I would probably say “copies” rather than “drafts” whenever I spoke to the media and later try to argue that the terms were somehow synonymous.

Paul Zrimsek wrote:

Your willingness to suspend judgment does you credit, Counselor. But if it was all just bumbling rather than deliberate malfeasance, where's the J. Bradford DeLong post titled "WHY DID I WORK FOR THESE IDIOTS?"

Excellent question.

GT - Let me try to address the question of intent as it relates to the "outing" of Ms. Plame. You are right in that I don't think the statute mentions intent. But that does not mean intent is entirely irrelevant because the statute does require that someone acted "knowingly" in outing a covert agent. Lack of intent does not, in and of itself, prove a lack of knowledge, but it CAN be evidence that someone did not act with the requisite knowledge.

In this case, for there to be a crime, whoever leaked to Novak would have had to had knowledge of two facts: 1) That Ms. Plame was a "covered" covert agent, AND 2) That the CIA was actively trying to maintain Plame's covert identity. If the person leaking the information to Novak did so to punish Wilson for being critical of the administration, this intent would be fairly strong evidence that the person knew both these facts to be true -- else how would the outing of Ms. Plame cause any harm? On the other hand, if the intent of the leak was to explain how someone so inept as Wilson could have been sent to Niger, this intent does NOT show the requisite knowledge. It does not show a lack of such knowledge, either -- unless the statute is interpreted to require the knowledge that disclosing Ms. Plame's role would result in Novak's publishing this detail. The "intent to punish" requires a desire to have Plame's name published. The "intent to explain" (to Novak) does not.

Thus, while not being dispositive, intent is clearly relevant to whether it is viewed that a crime was committed.

One last point: It is not at all clear that the leaker had the requisite knowledge. While the CIA may have known of Ms. Plame's status as a covered covert agent, it's not obvious that a member of the White House staff would have known this. I doubt very much that the name's of covert agents are shared with White House staffers on a routine basis. It also appears that the CIA was not taking great pains to protect Ms. Plame's covert identity. Novak tried to confirm Ms. Plame's status as a CIA employee. The CIA did NOT deny she worked there nor did it "insist" that Novak not publish her identity. If the CIA was trying to protect her covert identity, you'd have expected the CIA to deny her existence and/or try to persuade Novak not to publish her name. The CIA did neither.

David,

That sounds to me like a strange rationalization. Who knows it may be true but in my experience you can rationalize anything.

My only point is that what JIm and the WSJ are saying, that there is some sort of intent exception, is totally made up. If I am mistaken I'm sure someone will show me the relevant statute. But the fact that neither JIm nor the WSJ could come up with anything is pretty suggestive IMO.

As to whether Plane was covered or not or whether the person who outed her knew or not I will let Fitzgerald decide. I will only point out that I suspect that if the answer were as simple as you propose the investigation would have been over long ago. But in the end neither you or I know what Fitzgerald is doing and we will have to wait.

GT - I think we agree. (I hope that doesn't drive you to strong drink.) I don't think the leaker gets off just because his intent was pure (assuming there was someway intent could be objectively determined). If you have knowing disclosure, you have all the elements of the crime. But, since intent may shed light on the factual question of knowledge, intent is an important topic. (Too, intent would most likely matter to whomever determines whether a crime should be prosecuted, but that's another question.)

In comparing the two incidents, the Plame leak and Berger's removal of classified documents, the two have very little in common. It's very easy to construct a plausible, even a likely, explanation of the Plame leak that does not involve a crime. I've yet to hear a plausible, let alone a likely, explanation of how Berger could have removed classified documents without committing a crime. Many on the left have taken the rhetorical position that the leak is "proof" of a crime -- ignoring the requirement of knowledge on the part of the leaker. Many of those same folks now are excusing Berger by saying the removal of the documents was merely sloppiness on his part -- ignoring that the statute does not require knowledge or intent. Merely removing the documents, regardless of intent or knowledge, is enough for there to be a crime. On the other hand, many on the right are reserving judgment on the guilt of the Plame leaker, but are ready to assume Berger has committed a crime.

Before we say both left and right are being equally inconsistent, can we agree that Plame's leaker is at least plausibly innocent while the same cannot be said for Berger? We won't know the answer of guilt or innocence until the investigations have been completed (if then), but that does not mean that the two situations are comparable in regard to the probabilities of outcome

On Berger, yes he does seem 'guilty', at least of having taken documents by mistake. I haven't seen anything that would lead me to believe he did it on purpose, which makes no sense to me. Why would he do that?

Its my understanding the 'notes' on Bergers person were his own handwritten notes, and that taking them with him without showing them to the archives staff was a violation of policy, but not law. The actual copies of documents were returned to the archives.

Mathew Cromer Clarke isnt my guy. I credit it him with two things. Having the guts and class to apologize for failing America on 911, and bringing to the publics attention the methods used by Clinton to roll up 3 different Al Qaeda millenial terrorist cells. I dont rely on Moores movie in my criticism of the administration allowing the Bin Ladens out of Dodge. Clarke did OK the Bin Ladens flight, but Bush should have overruled his judgement. But since you bring up the movie, consider this. Much of the point of the Patriot act is to be able to hold American citizens without evidence, theres no way the Bin Ladens shouldnt have been held, seperated, and exposed to any interrogation technique we used in Guantonimo Bay. Btw, Its not Moore that criticizes Bush for allowing the Bin Ladens out of the country. Its the now retired FBI former head of mideast terrorism investigations that makes the argument. The Agent is very convincing in his criticism, he knew many people that died on 911, and breaks down when speaking of not being allowed to conduct interviews with the clan Bin Laden. I would have also thought the FBI had jurisdiction, not Clarke.

DOX, FOX and SOX

A.P.:

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

"In the course of reviewing over several days thousands of pages of documents on behalf of the Clinton administration in connection with requests by the Sept. 11 commission, I inadvertently took a few documents from the Archives," Berger said.

"When I was informed by the Archives that there were documents missing, I immediately returned everything I had except for a few documents that I apparently had accidentally discarded," he said.

CNN[a.k.a. 'not Fox']:

FRANKEN: Now, we have the further charge that Berger was seen -- this is according to three law enforcement sources talking to CNN's Justice Department correspondent Kelli Arena -- who said they saw him, or that he had been seen putting documents in his socks.

And that brought a statement from Joe Lockhart, the former White House press secretary, speaking on behalf of Berger and saying, "Sandy Berger categorically denies that he ever took documents and stuffed them in his socks. That is absurd. And anyone who says that is interested in something other than the truth."

So, we have documents, Kyra, that are classified higher than the legendary Q classification. These are called code documents, code- word documents, the highest classification.

Already a strange story -- and now the socks -- Kyra.

I will say, even if these law enforcement sources are not hallucinating, it is bloody hard to put 30-50 page documents in your socks. Try it.

I did once smuggle a bottle of Galliano into my dormitory in my pant leg. "say is that a tall hexagonal cylinder containing a disgusting liquer in your pants, or are you just happy to see me?"

Ive heard alot of contradictory information as to whats missing. The Archive has stated there are copies of all the removed documents, and the record hasn't been compromised. I don't understand how 3 law enforcement officers observed Berger stealing documents and did nothing about it. With such lax security the records at this Archive cant be as important as some think.

David W.,

It is not at all clear that the leaker had the requisite knowledge. While the CIA may have known of Ms. Plame's status as a covered covert agent, it's not obvious that a member of the White House staff would have known this.

True, but. I don't know if this might mean no crime was committed, since there seems to be some dispute among the legal eagles over the meaning of "intent" here.

I do know that it means there are some idiots running around who ought to be fired. Once they knew Plame was a CIA employee, shouldn't they have paused for just a nanosecond to check whether she was covert? Or was their rage at Wilson so great that they couldn't be bothered?

Before we say both left and right are being equally inconsistent, can we agree that Plame's leaker is at least plausibly innocent while the same cannot be said for Berger?

Can we also agree that leaking the identity of a covert CIA agent, whether that act is criminal or not, is vastly more likely to harm national security than whatever Berger did (which I agree was idiotic and possibly criminal).

Begbee:

"Its my understanding the 'notes' on Bergers person were his own handwritten notes, and that taking them with him without showing them to the archives staff was a violation of policy, but not law. The actual copies of documents were returned to the archives."

Your understanding is incorrect. Notes taken from classified documents carry the same classification as the highest level of classification of the source documents.

And I do believe (no cite at hand, sorry) that Berger also removed some draft documents, and lost them somewhere outside the Archive.

Based only on Berger's statements, he is guilty of a felony. What punishment might be appropriate, I can't say, but the letter of the law says he's guilty. This is plainly obvious to anyone who's ever had even a Secret clearance, much less TS-codeword. Also let it be known that there is NO way you can't notice the markings on a classified document. If Berger missed the markings, he was packing up the docs with his eyes closed.

Mindles,

Maybe I should have been clearer.

The Fox News article you linked to says that Berger and his lawyer recognized that he had taken documents in his socks. That is a complete lie. Neither Berger nor his lawyer ever said that. That is an accusation by a third party and that is what CNN is reporting. Fox instead makes stuff up and claims that Berger acknowledges using his socks when he never acknowledged that.

Simple, huh?

That's why I repeat you should avoid Fox News and your posts prove why. When you linked to Fox you got nonsense. When you linked to CNN you got the right story, that a third party was saying that Berger had taken documnets in his socks.

TomK,

Several news reports contradict what you say about the notes. Let's wait and see.

It never fails to amuse/infuriate me just how gullible partisans can be. I asked a (democrat) friend of mine (computer storage specialist) what would happen if he made notes of confidential client information, then inadvertently stuffed the notes down his pants and walked out of the secure area without notifying anyone. He'd be fired on the spot and most likely prosecuted.

For all of you apologists here, I'm sure you wouldn't care if someone rifled through your personal (medical, financial, legal, etc) documents taking notes along the way, and inadvertently forgot to tell you they had them stuffed in their underwear when they left your house/office. And I'm even more convinced that you'd be more irritated at whomever reveled this information rather than the person who copied all your private information, or why...

Bernard: No. That's precisely what we cannot agree on, because we don't know (1) what was in the documents, and (2) who has them now, or has seen them since Berger smuggled them out of the National Archives :

When asked, Berger said he returned some classified documents... but could not locate two or three copies of the highly classified millennium terror report.

That's what matters here. Not where on his person he concealed them. Doesn't matter if it was in his jacket, his pants, or his socks, or up his backside for that matter. Also, Begbee, not whether the originals are still there. What matters is that Berger removed the information those docs contained from a secure area and then lost it. For all you or I or Berger knows, Iran has it now. Or China, or France, or Israel, or Abu Musab al-Zarqawi. Assume, for the sake of argument, that Berger's account of the millennium plot was correct, and that the Clinton Administration took effective action to foil that plot. One would presume that the report contained at least some indicators as to how that was accomplished. Those methods, whatever they were, are blown now. If the report named sources, or gave indicators as to sources, those sources are compromised now. That potentially matters a lot more than the identity of one CIA operative. With that said, Bernard, of course whoever the hack politician was (or is) who outed Valerie Plame should lose their job, and that's just for starters. But then, we've got nothing but hack politicians here for about three weeks in every direction. We've got hacks posing as CIA operatives (Valerie Plame); as National Security Advisors (Sandy Berger); as journalists (Robert Novak, just to name one); as blue-ribbon panelists (Bob Kerry, Richard Benveniste, Jamie Gorelick.) We've got the Mother of All Hacks, Joseph C. Wilson the Third, "investigating" from a lounge chair, because who could take such a thing seriously, darling, and then bragging about it, and then milking it for his 15 minutes of fame. Forget for one minute that they're all liars. The thing that should concern you, Bernard, is that they're all hacks -- the only thing they care about is getting one-up on the crew of hacks opposite them, and greasing their own palms, and covering their own asses. That Sandy! What a scream! Papers used to just float around him in a cloud... (which hack am I now, Bernard?) Now: I'm well aware that I've just reeled off the names of (mostly) Democratic hacks. By all means, Bernard, stand up and give a shout for all of those fine Republican hacks. I'll get you started : Dick Cheney, who I once admired. Then, when you're done, tell me : how do we get the hacks the hell out of the national security business? (And don't tell me "vote for Kerry." His administration will be hackjacked before he's inaugurated, to say nothing of the permanent floating hackgame at CIA and the State Department.)

"Dick had it right, 'The first thing we do, let's kill all the Lawyers'"

The tort wing will be talking to you about that.

"Nowhere did I see anything about an intent exception. This sounds made up to me, made up by the WSJ... "

It's not an exception -- it's a requirement. USC Title 50, Ch. 15, Sec. 421, quote:
~~~
...
Whoever, having or having had authorized access to classified information that identifies a covert agent, *intentionally* discloses any information identifying such covert agent to any individual not authorized to receive classified information, *knowing* that the information disclosed so identifies such covert agent *and* that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more ...
~ end quote ~

Now in my real life I happen to know a couple people who work for the CIA. Women in fact -- though I sure won't give any real names! What they do there I don't know. If one happens to be the CIA's covert agent 001 I don't know that, nobody's told me. But if one is, and she has a couple too many drinks in Hogs and Heifers one night and starts blabbing bad things about Dubya's manhood, and I get irate about her slandering my hero so and decide, "I'll fix her, I'll out her to Page Six" and call up the NY Post, so the next day the gossip page is full of "CIA Ditz Denigrates Dubya's Dipstick", complete with the real name of Agent 001 with her picture and all, I have not committed a crime under this section. Because although I surely have intentionally outed a real CIA "operative" (the word Novak used) with malice aforethought, I did not do it intentionally with the requisite knowledge.

You mentioned the WSJ so I looked it up. In the news story on the subject you may have noticed the investigator quoted:

"The question, says a law-enforcement official, is whether the [leaker]... also leaked her name to damage national security. 'We still have to prove that, and it's not easy to do,' the official says. 'That's why nothing ever happens with these cases.'"

So feel free not to take my word for it. Unless you really think the WSJ's news reporters make up quotes like that to enhance their standing with their sources and their professional credibility with all the lawyers and judges who read them. In time we shall see if the prosecutors find requisite intent (assuming all the other elements of a crime are met, which also is not self-evident).

BTW, Mitch McConnell gave a little speech in the Senate today about Joe and Sandy.
http://mcconnell.senate.gov/record.cfm?id=224452&start=1

I'm not sure why all the fury. Stuff like this happens all the time. It happened with someone else in the "secret world" relatively recently. He'd taken home disks with classified information, or something. (I don't recall the details). It happens at Los Alamos (less now) - scientists think the restrictions are stupid, want to work on the data at home, burn a disk and take it home. It might even happen in bains example. If an employee of said company took home confidential information to work on at home, even when expressly told not to, he might be fired or he might just be reprimanded. The company might not even care, if the restriction was forced on them by an overly nervous client or lawyers worried about indemnity. Depends on the company.

"On the other hand, if the intent of the leak was to explain how someone so inept as Wilson could have been sent to Niger, this intent does NOT show the requisite knowledge."

Exactly so.

"One last point: It is not at all clear that the leaker had the requisite knowledge .... It also appears that the CIA was not taking great pains to protect Ms. Plame's covert identity."

Exactly so again. And not only CIA's doing so but the leaker's knowledge of it doing so are among the necessary elements for a crime.

Moreover, as the Slate piece pointed out in some detail, it didn't look like Joe and Valerie were taking any great pains either, which also is relevant to this element of the crime -- not to mention to Joe's basic credibility as he flip-flopped in those quotes from stating how Valerie could never show her face in public for security reasons to .. what ... until the best invitations were in and the price was right? And that Imus interview was a real pip too.

But if it was all just bumbling rather than deliberate malfeasance, where's the J. Bradford DeLong post titled "WHY DID I WORK FOR THESE IDIOTS?"
~~~~

Well, he *did* write that about Hillary running national health care.

Now think of Hillary running national health care as Berger runs national security.

Some people may remember why they voted Republican in 2000.

Bernard Yomtov: "Can we also agree that leaking the identity of a covert CIA agent, whether that act is criminal or not, is vastly more likely to harm national security than whatever Berger did (which I agree was idiotic and possibly criminal)."

No, Bernard, I cannot agree. It is unreasonable to expect a White House staffer should assume that all CIA employees are covert agents. Not every person working for the CIA is a covert agent anymore than most police officers work undercover. Indeed, common knowledge is that the identity of covert agents are highly kept secrets -- something that would not be shared with the White House. Given that the staffer had Ms. Plame's name, it was reasonable for him or her to assume that she was NOT a covert agent. Unless there is some memo stating "Ms. Plame, who recommended Wilson for the job, is also Amb. Wilson's wife, but don't mention this fact since she's a covert CIA spook.", I think the government is going to have a hard time proving the requisite knowledge or intent.

In this instance, every indication is that Ms. Plame USED to be a covert agent. At the time she was outed, Ms. Plame was no longer covert and it was unlikely that she would be used in that capacity in the future. (I am basing that on my often poor recollection of news reports saying that she had transitioned from covert work to being an analyst.) Thus, Plame's outing caused no real harm, while Berger's mishandling of documents may have caused real harm (we just may never know how much).

I have absolutely nothing useful to say about the Sandy Berger brou-ha-ha

You know, when you write something like that it's usually best not to follow it up with a few paragraphs monotonously proving the point.

Amazing what I apparently endorsed by making the word "socks" a hyperlink to a fox story.

GT - The difference here is that I am enjoying a truly strange detour in this story (without arguing that it makes Berger more or less culpable) and you insist on parsing it into a diatribe about news sources. We're asleep already, Killjoy.

David: The problem with "outing" a former covert agent is that it can cause foreign intelligence service to investigate her former contacts. Our own agents are replaceable - foreigners who are in trusted positions inside possibly hostile regimes and are willing to share information with us are much, much harder to find.

OTOH, she may never have actually been any more covert than, say, two white FBI agents in suits, ties, and short haircuts can go undercover in a poor black neighborhood...

I will say, even if these law enforcement sources are not hallucinating, it is bloody hard to put 30-50 page documents in your socks. Try it.

Jim,

You got it all wrong. It seems we are debating past each other.

You seem to be mixing up different concepts here.

I don't know if whoever outed Plame had the requisite knowledge or met all the conditions the statute requires. Neither do you. That's what Fitzgerald is looking into. I have no opinion about that. I will let Fitzgerald decide.

But what you wrote originally was something very different. Maybe you expressed yourself incorrectly. So let's backtrack.

We all agree that the statute says that it's a crime if you knowingly and intentionally out an officer the CIA wanted to remain covert. That is not being debated. But what you said in your original post is that even if someone does that their motives can be enough to say no crime was commiteed. That is wrong.

As I read you other posts it seems that what you wanted to say was that you thought that the fact that the outing was done to show nepotism is an indication that the poerson that did the outing did not have the requisite knowledge. If that's the case then I have no quarrel other than what I already said to David Walser.

You can reads more here about these points.

In summary there are two interpretations:

1) You think that nepotism issue is an indication that outer did not have the requisite knowledge. If that's what you ment to say all I can say is let's wait to see what Fitzgerald finds. Or,

2) You think that (as the WSJ editorial page did) that the outing is not a crime simply because it was done to show nepotism. In this case you and the WSJ editorial page are completely wrong. As Mark Kleiman shows the news reporters of the WSJ directly contradict the WSJ editorial page when they say that Whether or not it damages [Wilson] or not, the report, in strictly legal terms, should not have any effect on Special Prosecutor Patrick Fitzgerald’s investigation into whether the White House violated a law that makes it a crime to disclose the name of a clandestine intelligence officer.

I'm not sure why all the fury. Stuff like this happens all the time. It happened with someone else in the "secret world" relatively recently. He'd taken home disks with classified information, or something. (I don't recall the details).

Yes, that was John Deutch. That case was close enough to prosecution that Bill Clinton thought it necessary to pardon Deutch just before vacating the Oval Office. The reason that it took so long to prosecute was that CIA staff didn't pursue an investigation on their own, and actively covered the case up. If you want to learn more about that, just go over to fas.org (select the old site option; the new site still sucks) and search for Deutch. You'll see that there was activity on his case pretty much beginning in February of 2000 and increasing through September.

And the idea that someone else got away with the same sort of thing might excuse Berger's actions is repugnant. Things don't get classified TS Codeword for no reason.

David,

it was reasonable for him or her to assume that she was NOT a covert agent.

Doesn't the reasonableness of that assumption depend on what the staffer was going to do with the information that Plame worked for the CIA? When what is being considered is publicly identifying the employee, doesn't prudence suggest you assume the employee is covert unless you're sure that's not the case? Isn't that especially true when the action is pure spite, and serves the country in no way at all?

I think the analyses of potential harm from Berger's actions that you and Joe Shropshire advance are wildly far-fetched.The Chinese have the documents? Get serious. On the other hand, outing Plame can have the consequences markm mentions, and may also make it harder to recruit agents in the future. "Gee, I'd like to work for the CIA, but if my spouse does something that pisses Dick Cheney off I might get killed."

Jim,

You (or the WSJ) seem now to be going even beyond your own interpretation of the statute. The claim quoted in the article is that the leak must have been intended to damage national security. I see nothing in the section of the statute you quote to support this.

By this logic, if I know that your hypothetical agent 001 is covert, and I intentionally reveal that, not to harm national security but because I dislike her, I haven't committed a crime. That makes no sense.

Oh, and the Plame case is quite different. There's no perp, only one witness (who so far has managed to avoid subpoena), just to name a couple of major differences. With Berger there's a crime and witnesses; all that's missing is the motive being fleshed out.

In case it's not been made entirely clear, even inadvertent exposure of highly classified material is punishable by fine or imprisonment or both. The degree of punishment is a function of the seriousness of the crime, and it's important to determine whether Berger actually gave these documents to a third party. Not suggesting he did, mind you.

Should have said, there's no IDENTIFIED perp. Need...more...coffee.

1. I suspect many readers will consider this the authoritative piece on the Fox/socks issue.

2. Cox and Forkum have weighed in on the Berg(l)er case. Not their funniest but still chuckle-worthy.

Im amazed people are still calling Wilson a liar. I cant even find a single accusation of a Wilson lie, the only thing Wilson is guilty of is not interpreting the amount of Niger Uranium sales as somehow being proof of Iraqi attempted Uranium purchases. As to outing of Plame its clear the administrations 'investigation' has gone nowhere, Novak should be arrested and held without bond until he devulges his source.

Nearly every source Ive read on Berger has stated that the notes he took should have been reviewed by the archives staff, but unless they were near verbatum copies it was a breach of archive rules, but not the law. Thats what Gergan said, thats what Bergers lawyer said, I suppose who you believe here depends on your politics. Im willing to concede that Berger broke the law, but there are mitigating circumstances. The documents taken were positive reviews of the techniques used to foil the millinium terrorists, and the archive still has originals of the documents, so the record hasnt been compromised. The removal of the documents took place 2 days prior to Bergers testimony before the 911 commission, many have speculated his intent was only to review these lengthy documents in his home. But my biggest unanswered question about this mess is how did 3 law enforcement officers witness Berger removing documents and do nothing about it? When you consider the three thefts of classified material from Los Allamos in the past 8 months, one has to wonder how seriously this administration takes the protecting of classified government documents.

One other point about the documents Berger removed. These documents were classified, but many reporters, from Mathews to Hume have stated they had already read this document. Also this document is described in detail in Clarkes book, and also the 911 commissions report.

"Im amazed people are still calling Wilson a liar. I cant even find a single accusation of a Wilson lie..."

He claimed to have debunked the idea that Saddam was seeking uranium in Africa, even though he had information that an Iraqi offical (now known to be Baghdad Bob) sought trade relations that the Prime Minister of Niger interpreted as requesting uranium.

it was a breach of archive rules, but not the law

Incorrect. If the information in the notes was classified, then it's a violation of the law. If he removed the documents, same legal problem. What's apparent (from some accounts) is that he removed several copies of at least one document. Violation of the law, plus the what the hell? factor.

When you consider the three thefts of classified material from Los Allamos in the past 8 months, one has to wonder how seriously this administration takes the protecting of classified government documents.

Seriously enough that LANL has been shut down until these problems can be addressed. Seriously enough to dismiss the lab director. Yes, there have been a great many problems at LANL and Sandia. There's a great deal of difference between lax security far down the food chain, and lax security at the (former) very top. Berger ought to know better.

These documents were classified, but many reporters, from Mathews to Hume have stated they had already read this document.

It's possible reporters have read a declassified version of the document, but I really, really doubt that a reporter was shown codeword-access material. It just doesn't happen.

So, to recap:

GOP partisans: Wilson's a liar.

Dem partisans: No, he's not. And even if he were, he'd be better than Bush.

GOP partisans: Berger's a crook.

Dem partisans: No, he's not. And even if he were, he'd be better than Bush.

GT:

"Several news reports contradict what you say about the notes. Let's wait and see. "

Well, I know I've been through the classified briefs and the training classes, and signed the docs that say your ass belongs to Uncle Sam if you screw up the handling of sensitive info. I wonder how many of your news reports can say the same?

Look, it's the rules: Once you create notes based on a classified doc, those notes carry the same classification. Yes, they may be reviewed, and have the classification level downgraded (or even removed entirely), but they have to be reviewed first. If Berger's notes were never reviewed, and he removed them from the Archive, he violated the law. It makes NO difference what's in the notes. They were never reviewed, so by definition they were classified. Removing them without review is a felony, even if it was just a stupid mistake.

We know he took notes while reviewing TS-codeword material. We know the notes were not reviewed. We know that he removed the notes from the Archive. He is, in no uncertain terms, in violation of the law. There may be mitigating circumstances, and the resulting punishment may be even less than a slap on the wrist, but that's up to the judge.

Berger is either a) an idiot beyond anything the Left has accused Bush of being, or b) a liar. He is definately, no matter what, a criminal, based on his own statements. You can spin it no other way, unless you too want to be dishonest.

TomK:

The staff at the archives says he took entire documents, and never returned them. If the handwritten notes weren't enough, the missing documents surely ought to be.

TomK,

Let's wait and see, shall we? I am not defending Berger, in any case.

As I stated previously, several lawyers dispute that the notes Berger took are legally equivalent to the documents he removed. Mathews, Hume, Orielly, and several others have seen the same file that Berger took, this document has been circulating among the media elite since Clarkes book. This story is overblown nonsense. Berger was an unpaid Kerry consultant, he was never considered to have a role in the new administrations cabinet. Its clear that Berger broke the law in preparing for the 911 hearing. Its also clear that this investigation is nine months old, and has been on the shelf since April. You reps are running against Kerry, not Clinton, its time to let the Foster 'assassination', the Rose law records, Hillaries village, Monicas dress, Paulas accusations, and all that other stuff go.

The LANL situation is far more serious than the Berger accusations. First, we have no idea who or why the LANL classified material was removed. Second, the LANL material deals with nuclear considerations, which is certainly more troubling than the Berger material that dealt with the Senate review of the millenial terrorist case, and was widely deceminated anyway. Third, this administration completely failed to act on the first two thefts from the LANL, and only responded when the media made an issue of the third. When you consider the previous LANL security breaches its very disturbing it took three more thefts and the media to wake up this administration. Its as bad as the PDB titled 'Bin Laden to attack within the US', it seems this administration doesnt understand whats a threat.

Sebastion Holsclaw when you consider that the Niger Uranium documents were forgeries, that Wilson nor anyone else has claimed to hear any agent of the Iraqi government even mention the word Uranium in Niger, and that every single wmd accusation brought forth by this administration reguarding Iraq has been wrong, Wilson certainly did debunk more Bush nonsense.

TomK - I don't want to defend the indefensible, but I don't think Berger's guilt is quite as clear cut as you make it sound. You are correct, the statute does not require that the classified materials were "knowingly" removed. Thus, even if a person is completely unaware that he or she has removed classified materials, a crime may have been committed. This makes it very difficult to rely on the "inadvertent" removal of the materials as a defense. But the law does allow for an absence of "gross negligence" exception. That is, if Berger can show how those documents (and the notes) "inadvertently" were removed WITHOUT the removal being the result of his gross negligence, he's off. From the facts reported in the press, I cannot imagine how he could prove such a thing, but I don't think we should ignore the theoretical possibility -- although it appears it's more likely that the Beatles will be holding their reunion tour this Fall.

Begbee - What, if anything, would it take to convince you that Wilson lied about several major and minor points? Two investigations into the pre-war intelligence, one British and one US, reached conclusions that are factually at odds with Wilson's statements. Even the WaPost's ombudsman slammed him for his, ah, lack of candor. Scores of electrons have been used on the internet to compare what he's claimed with what has been independently documented to have happened and it's just impossible to reach any other honest conclusion but that the man is a stranger to the truth.

Given your over-eagerness to believe the worst about members of the current administration, just what, exactly, would it take to persuade you Wilson has intentionally misled the public?

D Walser there are quite a few reasons I dont believe Wilson lied. First, the CIA still believes Wilsons interpretation of the Iraq/Niger/Uranium situation to be correct. Interim CIA Director Mclaughlin was quoted on this July 9 2004 in the NY Times, and was shown on Fox news stating the Iraqi/Niger/Uranium claims should have been removed from the SoU. Second, Ive yet to read a single assertion of any Iraqui agent enquiring about Uranium in Niger. Third, if Wilson did lie on this subject, it would be treason. I can think of no reason for him to take that risk, if you think he made this claim to sell a book, your crazy, in the current climate a publisher would have far more interest in the spy that revealed an Iraqi nuclear connection, than the spy that says 'We got nada'. Fourth, this administration has proven to be wrong about Iraqi wmd across the board, its not like they have a history of being accurate in these matters. Fifth, the Brit Intelligence report that made this claim also claimed that Saddam could strike the UK in 45 minutes with wmd. Who cares if they stand behind other unsubstantiated claims. Sixth, the supposed foreign intell source has never been revealed, all we know is that someone leaked the story to the media. Seventh, the idea that because 75% of Nigers exports being uranium proves Iraq must have been seeking Uranium in trade with Niger is ridiculous. The only way I would believe Wilson lied at this point is if the administration can come up with a Nigerian witness that says he told Wilson that an Iraqi agent at least enquired about Yellow Cake.

D Walser there are quite a few reasons I dont believe Wilson lied. First, the CIA still believes Wilsons interpretation of the Iraq/Niger/Uranium situation to be correct. Interim CIA Director Mclaughlin was quoted on this July 9 2004 in the NY Times, and was shown on Fox news stating the Iraqi/Niger/Uranium claims should have been removed from the SoU. Second, Ive yet to read a single assertion of any Iraqui agent enquiring about Uranium in Niger. Third, if Wilson did lie on this subject, it would be treason. I can think of no reason for him to take that risk, if you think he made this claim to sell a book, your crazy, in the current climate a publisher would have far more interest in the spy that revealed an Iraqi nuclear connection, than the spy that says 'We got nada'. Fourth, this administration has proven to be wrong about Iraqi wmd across the board, its not like they have a history of being accurate in these matters. Fifth, the Brit Intelligence report that made this claim also claimed that Saddam could strike the UK in 45 minutes with wmd. Who cares if they stand behind other unsubstantiated claims. Sixth, the supposed foreign intell source has never been revealed, all we know is that someone leaked the story to the media. Seventh, the idea that because 75% of Nigers exports being uranium proves Iraq must have been seeking Uranium in trade with Niger is ridiculous. The only way I would believe Wilson lied at this point is if the administration can come up with a Nigerian witness that says he told Wilson that an Iraqi agent at least enquired about Yellow Cake.

Ignore Begbee, David. Nothing on earth will ever convince him of anything but (a) the Dems are hero-patriots and (b) Bushitler is eeeeevil. Period. Move along.

TomK:

People break the law inadvertently (and sometimes purposely) all the time, and prosecutors use their discretion to decide whether or not to prosecute based on whether it really serves the people's interest (or other, less noble, interests). For example, you might expect that someone who ran a stop sign and killed someone would be prosecuted for vehicular homocide. Not Laura, though. (See www.usatoday.com/news/opinion/e1698.htm ).
I don't have a problem with this decision - it doesn't look like she's killed anyone since.

The Pubs will milk the potential prosecution of Berger till after the election, and then a political deal will be made and it will all go away. Same with the Plame bit.

several lawyers dispute that the notes Berger took are legally equivalent to the documents he removed.

Lawyers don't get to make the rules on classification. Sorry, this argument doesn't fly.

You reps are running against Kerry, not Clinton, its time to let the Foster 'assassination', the Rose law records, Hillaries village, Monicas dress, Paulas accusations, and all that other stuff go.

Damn. Straw everywhere.

The LANL situation is far more serious than the Berger accusations.

True, but irrelevant. I call red herring.

was widely deceminated anyway.

Assuming you meant "disseminated", I question that documents at this level of classification were "widely disseminated". I'd buy that redacted versions were, but that's not the same thing at all.

Slartibartfast thanks so much for correcting my poor spelling, did the effort cause you to drop over like that poor Asian kid in the spelling B, or did you use spell check, or are you the type that always recieved gold stars for spelling? You can clean the erasers after class.

Lawyers dont write the laws, but they sure do argue about their interpretation. No need to apologize to me, I could care less about this overblown bs, but you might want to apologize to Bergers lawyer who clearly disagrees with you.

How do you figure the LANL stolen classified material to be a red herring? It deals with the exact same thing the Berger removed documents does, this administrations failure to properly secure classified material. Its your side that states three different law enforcement officers witnessed and failed to stop Berger from removing classified documents from the archives, and its your side that has no idea who is responsible for at least three seperate thefts over eight months time of classified material from LANL. When you consider the material that Berger removed was material he had already read and was about to testify on, while the LANL thefts deal with nuclear technology, and we have no idea of who stole the documents or why they were stolen, the red herring is the Berger story stealing the headlines from the much more serious LANL espionage.

I hate to disagree with my fellow dems, but neither Berger, Plame, or Wilson will be prosecuted for anything. Berger is likely guilty, but its widely reported that his removal of classified documents from the archives is not nearly as uncommon as the reps now suggest. Neither side will benefit from all the dirty laundry that will be aired if this case is brought. Further its my understanding that this case would be heard in DC if its brought. Do you think the reps can find a jury to convict Berger in DC? I can hear it now, 'If he could read the documents before, he must be allowed to read them some more'. The idea Wilson or Plame lied on anything Iraq related is a joke. They have absolutely nothing criminal on Wilson, and a he said, she said, at worse on Plame.

Btw, Im no fan of the dems, but I think Kerry is a very good candidate for the time. Under fire, Kerry charged ahead and rescued a member of his squad. Under fire, jr looked like a deer in the headlights before he regained his composure and continued reading 'My buddy, the goat'. Btw, I dont think Bush is nearly evil as he is stupid. Evil is provided by Cheney, Wolfy, and Rummy. Stupid is provided by jr and Condie, while Powell is merely exploited. I will say I somehow actually love Rumsfeld, I guess its his 'your to dumb to lie to' demeanor.

did the effort cause you to drop over like that poor Asian kid in the spelling B, or did you use spell check, or are you the type that always recieved gold stars for spelling?

I said I assumed you meant "disseminated" because you mangled the word so badly that it really wasn't obvious what you were trying to say. But what the hell, blame me for your mistakes if it makes you feel better.

but you might want to apologize to Bergers lawyer who clearly disagrees with you.

Then again, I might not. I clearly know a great deal more about this sort of thing than he does. After all, I've only been working with classified material for the last couple of decades. These rules aren't subject to the sort of interpretation Berger's lawyer is attempting to employ. No, the notes aren't in fact legally equivalent to the documents. That's irrelevant. What's relevant is that the notes are by default classified at the same level as the documents, until such time as they are officially declassified by a cognizant authority. Which Berger is not.

How do you figure the LANL stolen classified material to be a red herring?

Because it's got nothing whatever to do with Berger, or the documents he swiped. I thought that was obvious, but I guess not. Should LANL get its act straightened out for it? Unquestionably. Does the compromised security at LANL mean that Berger ought to get off any lighter? Unquestionably not. Hence, red herring. One thing has got just slightly more than zero to do with the other.

Slartibartfast dont take this personally, but I dont believe most of the credentials claimed on these boards. There have been many lawyers disputing the law in reguard to the Berger documents, I remain unsure of whos interpretation is correct. I completely disagree that the Berger and LANL are unrelated, both deal with the removal of classified documents from secure facilities, and the fact is LANL is a much more serious problem.

There have been many lawyers disputing the law in reguard to the Berger documents

Let's be clear here: the remarks of any lawyer in this matter is for PR purposes only. You'll only see the legal arguments when they're put before a judge. Besides, it's an undisputed fact that Berger removed highly classified documents in addition to the notes.

I completely disagree that the Berger and LANL are unrelated

Unrelated in the sense that the proceedings in the resolution of each need not effect (or be effected by) the prosecution of the other. Unless you know something I don't.

The effects should be affects.

Ignore Begbee, David. Nothing on earth will ever convince him of anything but (a) the Dems are hero-patriots and (b) Bushitler is eeeeevil. Period. Move along.

Out of 100 points:

-20 Strawmen (2 @ -10)
-5 Flamebait
-25 Attempting to supress a debate of logical reasoning
------------
Final score 50%

RMc, this grade does not bode well for your long-term success as a debater. Consider brushing up on the basics of logic and rhetoric immediately.

It's important to walk a mile in Sandy Berger's shoes before we judge him. After all, who among us has not inadvertantly stuffed contraband documents into our socks at one time or another?

RMc, this grade does not bode well for your long-term success as a debater. Consider brushing up on the basics of logic and rhetoric immediately.

I will when you and Begbee will, asswipe.

Oh, and real brave posting with a phony E-mail address. Oooo, I'm so frightened...

I will when you and Begbee will, asswipe.

Dear me, either you were posting while drinking, or you have within you a tongue so acidic that one might jumpstart a car simply by attaching to it the requisite cables. Do note that either case is dangerous; both completely kill logical reasoning skills.

For example, when confronted with such blatant evidence of your misdeeds, you might instead wish to respond to the accusation of having raised two strawmen, and having attempted to suppress a debate of logical reasoning. This is known as addressing evidence on its merits. Begbee, in this case, has been giving detailed evidences and conclusions drawn therefrom. He or she may be correct, mistaken, or even utterly confused, but that still leaves Begbee a Texas mile ahead of your hit-and-run tagteam approach.

Oh, and real brave posting with a phony E-mail address.

Bravery? So is that what you call your ability to post here with a supposedly-valid email address? That is amusing in a vaguely disturbing sort of way, a bit like watching a cartoon trainwreck unfold. (I may record that post for posterity. Dr. Rita Rational is on leave this week but she deserves a good laugh, too.)

Oooo, I'm so frightened...

You would be, if you saw how well the Principles of Logical Reasoning are performing in their ninjitsu training. You are quite the character this evening, I am sure they will be happy to commence assassination. Keep a sharp eye out for shadowy figures carrying keyboards.

Innocent until proven guilty ain't just a river in Egypt

I just wanted to say that that's a great line.

Dear me, yada yada yada (ten miles of prissy blathering snipped)

And the winner in the First Annual Needs To Get A Life Award is...it's a tie! Begbee and Illogical Unreasonable Fairy! Congratulations!

Now take your meds, and hope Daddy doesn't find out you've been using his computer, mmmkay?

Oh, for pete's sake. Put me in for total agreement with LRF. Not that Begbee or myself are guilt-free in the logical fallacy department, but at least we're not telling each other to shut up. Shut UP. SHADDAP!

I told LRF to "shut up"...when, exactly?
He's the one avoiding the topic at hand, not me. He's the one who attacked, not me. He's the one defending the indefensible, not me.
Nice try, though.

Rmc I finally figured out your screen name. From your writing I figured it to be a pop culture reference to some hip hop act. But a few more Rmc posts and I realized I wasn't giving hip hop acts enough credit. Then I read your latest comments here, I thought 'what a clown', and bang, a moment of clarity. Hows the Hamburgler doing these days?

I was going to say, "Look, folks, Begbee's out of ideas...he has no choice but to attack!"
Then I remembered that Begbee had no ideas to begin with...besides the ever-popular "Bushitler! Haliburton! Blahblahblah!"
Tsk. May I suggest you put down the gun while you still have some toes left, sonny?

Now casting another vote for RMc to call off his braying ass; maybe give it some oats or hay or something so its mouth will have productive employment...?

Yep...truth hurts, don't it?
"Dead end road", indeed!

Stick to pushing Big Macs Ronald.

Your pathetic. You start slinging insults then cry 'you have to resort to personal insults.' Then you get your clock cleaned(again) and have the hubris to declare victory. Indeed.

Your pathetic.

Ah, another English major.

Then you get your clock cleaned(again)

(snort) Stop. You're killing me.

Wanna talk pathetic, Begbee? How about refusing to see the obvious: that Joe Wilson is a filthy liar and that Sandy Berger is a thief, one who steals classified documents? How about placing partisan politics above the war this country is supposed to be fighting? I mean, even hardcore leftists like yourself must get tired of braying the same old indefensible positions over and over and over again, in the hope that the evil Bushitler will look bad. Certainly the rest of us do.

Oh, and BTW, Kerry's gonna lose in November. Big.

Guess what, RMc? America either doesnt believe or doesnt give a damn about Berger or Wilson. Kerry will walk away with this election. Do you know why? 'Because Strength and Wisdom are not opposing values.' It has to suck having 20 minutes of Clinton upstage three and a half years of jr...

RMc, what truth? That doesn't even make sense; unless, that is, you're here to debate politics as a religion. But I'm not really interested in any religion that puts its faith and hope in politicians and their ilk (speaking of truths that hurt...).

By the way, if you're going to mock email addresses, you might NOT want to post using an email domain of "magiccarpet." It's just too easy (think Steppenwolf).

It has to suck having 20 minutes of Clinton upstage three and a half years of jr...

You might want to avoid putting the words "suck" and "Clinton" in the same sentence. Just a thought.

Kerry will walk away with this election.

Nope. It's conceivable he could win, if things really go south for Bush in the economy and/or in Iraq, but the most Kerry can hope for is a Carteresque "He's-not-quite-as-awful-as-the-other-guy" victory.

A glance at the state-by-state polls at http://www.rasmussenreports.com/election_2004.htm
shows Kerry leading in EVs (thank you California) but ahead in just 17 states plus DC, compared to 25 for Bush. (In fact, Kerry's leading only in states Gore won in 2000, and even IA, NM and PA are rated toss-ups.) To "walk away", Kerry needs to sweep the South (not happening) and make some inroads in the interior West (really not happening).

Kerry's only real hope is to keep himself under wraps until Election Day, marketing himself as "The Guy Who's Not Bush." (Don't worry; it's not like anyone's watching the Dems' little get-together in Boston this week.) Once the whole country starts paying attention and gets a load of this guy, with the flip-flops, the devil-may-care attitude about the war, the speaking style that could kill wildlife at fifty paces (and of course, the ever-popular "More taxes for everybody!"), Kerry will have to hustle just to win the ten states Dukakis managed in '88. Gonna be ugly, folks...

RMc Kerry will walk away with this election. jr lost the last popular vote to Al Gore, who was a much weaker candidate than Kerry because of Clintons baggage, and that also was before America realized how stupid Bush actually is. And Im not misunderestimating him. You guys have to understand its better to flip flop than to always be wrong, as Bush has been about Iraq, wmd, star wars, tax cuts in face of huge new spending, defecits, etc. As it stands now Kerry will take every state Gore did, plus 7 others. Wait till Moore drops the dvd of F-911 the week of the rep convention. Maybe the massive rock star like charisma of T Delay, B Frist, or J Ashcroft will carry the day at the rep convention, but I wouldnt bet on it. Beyond that, the expectations in the debates will be much higher for a sitting president, jr will have to do more than string a couple sentences relatively close to the issue this time. And unlike the 911 commission Cheney wont be there to hold his hand. Maybe he can wear his cheerleading uni...

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