THE TENSION: Update: What Did Sandy Berger Hide From the 9/11 Commission?

He agreed to a polygraph test before the Justice Department decided not to give one.
Here's an update to a recent post about ol' "Docs in his Sox" Berger:

All things being equal, why does the Justice Department's case against Scooter Libby deserve more attention than their case against Berger? Perhaps it is easier for Hillary to run for president on Bill Clinton's legacy if that legacy remains untarnished by the truth.

Update: John Fund, writing in The Wall Street Journal asks, "Did investigators turn a blind eye to the seriousness of the Sandy Berger scandal?"

Prosecutors accepted Mr. Berger's assurance that he had taken only five documents from the archives, even though on three of his four visits there he had access to original working papers of the National Security Council for which no adequate inventory exists. Nancy Smith, the archives official who provided the materials to Mr. Berger, said that she would "never know what if any original documents were missing." We have only Mr. Berger's word that he didn't take anything else. The Justice Department secured his agreement to take a polygraph on the matter, but never followed through and administered it.

The issue is still relevant. Officials of the 9/11 Commission are now on record expressing "grave concern" about the materials to which Mr. Berger had access. A report from the National Archives Inspector General last month found he took extraordinary measures to spirit them out of the archives, including hiding them in his pockets and socks. He also went outside without an escort and put some documents under a construction trailer, from where he could later retrieve them.

While a polygraph is not admissible in court, it is a valuable tool investigators can use to lead them to other evidence. Andrew Napolitano, a former judge who is a legal analyst for Fox News, notes: "If they ask him, did you take document X, Y, Z, and he says no, and the polygraph shows that he's lying, that will send them on a hunt for document X, Y, Z." In addition, Mr. Berger would have to take the test under oath and thus could be prosecuted for perjury if he lied, even though his document-theft case is closed.

The 9/11 Commission wishes it had known answers to that and more. It's time that Congress and the public learn why the Berger scandal was treated so nonchalantly.

The Washington Times reports eighteen House Republicans have urged the Justice Department to proceed with a polygraph test for Samuel R. Berger, the former national security adviser who agreed to take the test as part of a plea of guilty of stealing documents from the National Archives.
"This may be the only way for anyone to know whether Mr. Berger denied the 9/11 commission and the public the complete account of the Clinton administration's actions or inactions during the lead-up to the terrorist attacks on the United States," the congressmen said in their letter to Attorney General Alberto R. Gonzales.
Berger agreed to a polygraph examination as part of a plea deal, but Justice never administered the test, according to two Justice officials closely connected to the case -- John Dion, chief of the counterespionage section, and Bruce Swartz, deputy assistant attorney general for the Criminal Division.

The Oversight and Government Reform Committee Ranking Member Tom Davis (R-VA) released a formal statement a few days ago on a committee report that sheds important new light on Sandy Berger’s theft of classified documents from the National Archives. The report makes it clear that the full extent of Mr. Berger’s document removal can never be known, and consequently the Department of Justice could not assure the 9/11 Commission that it received all responsive documents to which Mr. Berger had access.

“The 9/11 Commission relied on incomplete and misleading information regarding its access to documents Mr. Berger reviewed. No one ever told the Commission that Mr. Berger had access to original documents that he could have taken without detection."