July 20, 2004
I BELIEVE THAT THIS IS THE RELEVANT STATUTE, 18 U.S.C. 793 (f), governing Berger's behavior:
Sec. 793. - Gathering, transmitting or losing defense information
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer -
Shall be fined under this title or imprisoned not more than ten years, or both.
(Via reader David Radulski.) I'm no expert in this area of the law (I teach National Security Law, but don't spend much time on these sorts of questions), but this would seem to rule out "inadvertence" as a defense. The legalities of this are the least important part from my perspective -- I'm far more concerned with what the Hell he was thinking -- but this may be useful. And if readers with more expertise think this statute isn't applicable for some reason, please let me know. Berger's statements in this story sound like an admission that he's violated this statute:
"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.
Gross negligence? Sounds like it to me. But again, I'm not an expert. In fact, this almost makes me wonder why he hasn't been charged -- though the decision to charge someone, even someone admittedly guilty, is always a matter of discretion, and criminal charges against a former National Security Adviser are a rather big deal. It's easy to understand why the Justice Department might be reluctant to bring such charges even if it's satisfied that all the elements of the crime are present.
UPDATE: Lawyer-reader David Danner emails:
As noted, the culpable mental state for a 793(f)(1) violation is "gross negligence". I'm not sure of the Federal standard, but as a general rule, gross negligence is more reckless than ordinary negligence, and in the case of property usually means failing to exercise the care one would with one's own property. Former President Clinton's joking about Berger always losing things, as quoted by Drudge, sounds like a carefully crafted legal strategy to show that Berger lacked this culpable mental state because he was always sloppy, even with his own property.
That gets him out of the felony. There is also a potential misdemeanor violation of 18 U.S.C. § 1924 for the notes, where the standard is "knowing" removal of classified documents. On the misdemeanor, I would imagine he will argue that while he knew he removed his notes, he didn't "know" they contained anything classified (meaning he thought they did not). Since actual knowledge, not gross negligence, is the standard under § 1924, a reasonable belief that his notes contained no classified information would appear to suffice (at least before a jury).
So, the things he knew were classified he inadvertently took and the things he knowingly took he didn't know were classified. Suddenly all these news reports sound like a well-crafted legal strategy.
Hmm. Is that more or less reason to believe them. . . ?