22 December 2006

The Offenses of Sandy Berger

My thanks to Instapundit for putting up the information and links to the outcome of this case!

First up we have the 21 DEC 2006 article by Josh Gerstein at the NY Sun for giving the overview of what went on, according to the Inspector General involved, which is a good place to start:

"Mr. Berger exited the archive onto Pennsylvania Avenue," the report says, recounting the story the former national security chief told investigators. "He did not want to run the risk of bringing the documents back in the building. … He headed toward a construction area on 9th Street. Mr. Berger looked up and down the street, up into the windows of the archives and the DOJ, and did not see anyone. He removed the documents from his pockets, folded the notes in a ‘V' shape, and inserted the documents in the center. He walked inside the construction fence and slid the documents under a trailer."
This, then is a willful taking of public documents with attempts to mislead anyone tracking said documents and cannot be considered to be an 'oversight' or other problem due to loss of memory of the actual placement of these documents. While the National Archives does have a responsibility to do a page count or inventory on all Classified material when it is returned, that can often be a cursory examination, not a sheet-by-sheet examination. And as all Classified documents are marked top and bottom and on the center of the blank back of a sheet, there is no way that oversight on their being Classified documents can be involved. See here for the DoJ view on:
To 'steal or purloin'.
Also 'knowing conversion' of government property.
Also 'Sell, Convey or Dispose of Government Property without Authorization'.
And 'Receiving, Concealing and Retaining Stolen Property'.
Further in the article we have this from Mr. Gerstein:
All five documents Mr. Berger removed were versions of an after-action report about the foiled "millennium plot" to bomb the Los Angeles International Airport and other sites. The internal review, by a top counterterrorism official, Richard Clarke, reportedly found that luck was the major factor in disrupting the plot and that more attacks were likely.

Mr. Berger has admitted placing classified documents and his notes, which were also presumed classified pending a review, into his suit pockets to carry them out of the archives. However, the inspector general's report resurrects claims that Mr. Berger may have removed some papers by placing them in his socks.

An archives staffer reported that Mr. Berger took frequent bathroom breaks and was seen in a hallway "bent down, fiddling with something white, which could have been paper, around his ankle."

Mr. Berger later told investigators that any fidgeting near his feet was due to difficulties he has keeping his footwear tidy. "He stated his shoes frequently come untied and his socks frequently fall down," the report said.

A person close to Mr. Berger said yesterday that the so-called docs-in-the-socks incident never took place. "It simply didn't happen. It was wrong. The Justice Department determined it was wrong," the Berger ally, who asked not to be named, said.

The inspector general's report, released under the Freedom of Information Act, was heavily redacted on national security and privacy grounds. The internal watchdog appears to have focused on whether archives personnel were too deferential to Mr. Berger by contacting him about the missing documents before notifying the FBI.

Names of archives employees were deleted from the report, as were those of any National Security Council staffers involved.

One employee "did not believe there was enough information to confront someone of Mr. Berger's stature" and delayed acting as a result, the report said.
Thus these documents dealt with a National Security problem addressing Transnational Terrorism and the amount of luck involved in that and having a well trained border inspection capability. Mr. Berger may, indeed, have done something with these documents and his socks, briefcase or pants, method is not so important as the fact that he willfully took them without doing any necessary work for the checking out of Classified documents to ensure that they would be going to a proper facility that could track, store and maintain them. This falls under the jurisdiction of the National Archivist Title 44, Chapter 2 of the US Code and the Information Security Officer will be able to grant access based on various determining factors.

At meetings where copies of Classified information are handed out they are rounded up after said meetings and any of those having additional, handwritten remarks or notes are then treated as NEW Classified documents. As all of these records dealt with the public record of events, the actual recording of an individual's thoughts at such meetings which are part of the Federal Government are Federal Government property. Documents that have not been updated are shredded and burned, their ashes mixed and sifted if they are Classified at the time of their destruction. Do note that there are 'Working Papers' provisions for intermediate work documents, that are also tracked as created and destroyed. Those are seen as of lesser value to the Federal Government, although their creation and tracking still must be done when involving Classified work. Thus, what ends up in the National Archives is the Public Record of the Federal Government and are not only owned by the People but are the history of the Government.

Further, all Federal Employees that are sworn in on the use and protection of such documents are to confront anyone, even the President, Vice President or members of the Cabinet, if there are any attempts to remove Classified documents without going through necessary procedures. The President and the Vice President can, of course, simply put a line through the classification markings and scribble in Unclassified... and then have THAT recorded in the tracking documentation for said documents. Anyone attempting to coerce or hinder such confrontations is in violation of the necessary security regulations to safeguard such documents, which is also a crime (as seen in 18 USC 1516, provided by Cornell Law School search).

Now, the US Dept. of Justice has a view on this as it is part of the Title 9 - 66.00 Protection of Government Property which has their viewpoint on the following areas, and I will excerpt for relevant passages in each:
1663 Protection of Government Property -- Protection Of Public Records and Documents
The taking of a public record or document is prohibited by 18 U.S.C. § 641. The destruction of such records may be reached under 18 U.S.C. § 1361. In both instances, however, proving a $100 loss, the prerequisite to a felony conviction, may be difficult. Thus, neither of these statutes adequately protects government records.

The necessary measure of protection for government documents and records is provided by 18 U.S.C. § 2071. Section 2071(a) contains a broad prohibition against destruction of government records or attempts to destroy such records. This section provides that whoever: willfully and unlawfully; conceals, removes, mutilates, obliterates or destroys; or attempts to conceal, remove, mutilate, obliterate or destroy; or carries away with intent to conceal, remove, mutilate, obliterate or destroy; any record, proceeding, map, book, paper, document or other thing deposited in any public office may be punished by imprisonment for three years, a $2, 000 fine, or both.


The acts proscribed by this section are defined broadly. Essentially three types of conduct are prohibited by 18 U.S.C. § 2071(a). These are: (1) concealment, removal, mutilation, obliteration or destruction of records; (2) any attempt to commit these proscribed acts; and (3) carrying away any record with the intent to conceal, remove, mutilate or destroy it. It should be noted that all of these acts involve either misappropriation of or damage to public records. This has led one court to conclude that the mere photocopying of these records does not violate 18 U.S.C. § 2071. See United States v. Rosner, 352 F. Supp. 915, 919-22 (S.D.N.Y. 1972).

Subsection (b) of 18 U.S.C. § 2071 contains a similar prohibition specifically directed at custodians of public records. Any custodian of a public record who "willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys (any record) shall be fined not more than $2,000 or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States." While the range of acts proscribed by this subsection is somewhat narrower than subsection (a), it does provide the additional penalty of forfeiture of position with the United States.

Title 18 contains two other provisions, of somewhat narrower application, which relate to public records. Section 285 prohibits the unauthorized taking, use and attempted use of any document, record or file relating to a claim against the United States for purposes of procuring payment of that claim. Section 1506 prohibits the theft, alteration or falsification of any record or process in any court of the United States. Both of these sections are punishable by a $5,000 fine or imprisonment for five years.

1664 Protection of Government Property -- Theft of Government Information
Section 641 of Title 18 prohibits theft or receipt of stolen government information as well as theft of the documents, computer discs, etc., that contain the information. United States v. Fowler, 932 F.2d 306, 309-10 (4th Cir. 1991); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.), cert. denied, 444 U.S. 871 (1979); United States v. DiGilio 538 F.2d 972, 977-78 (3rd Cir. 1976), cert. denied sub nom. Lupo v. United States, 429 U.S. 1038 (1977). But see United States v. Tobias, 836 F.2d 449, 451 (9th Cir.), cert. denied, 485 U.S. 991 (1988). Nevertheless, for the reasons set forth below, the Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.

There are two reasons for the policy. First, it protects "whistle-blowers." Thus, under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft. Second, the policy is designed to protect members of the press from the threat of being prosecuted for theft or receipt of stolen property when, motivated primarily by the interest in public dissemination thereof, they publish information owned by or under the custody of the government after they obtained such information by other than trespassory means.

The Criminal Division does not intend, in promulgating this policy, to prevent or discourage prosecutions under any other applicable statutes, such as those prohibiting the unauthorized dissemination or possession of government information, e.g., 18 U.S.C. §§ 793, 794, 1905, or 50 U.S.C. § 783. Instead, the Division's purpose is to require that, in the circumstances enumerated above, such cases are prosecuted under these other applicable statutes rather than under 18 U.S.C. § 641.

The adoption of this policy does not alter the responsibility of government employees to maintain the confidentiality of sensitive government information disclosed to them in the course of their employment.

1666 Destruction of Government Property -- 18 U.S.C. § 1361
Section 1361 protects "any property" of the United States or an agency or department thereof, or any property being manufactured or constructed for the United States or an agency or department thereof, from willful depredation or attempted depredation. "Depredation" has been characterized as the act of plundering, robbing, pillaging or laying waste. United States v. Jenkins, 554 F.2d 783, 786 (6th Cir. 1977); cf. Deal v. United States, 274 U.S. 277, 283 (1927) ("depredation" defined in context of postal statute). This section prohibits actual physical damage or destruction of both real and personal property, but mere adverse possession of that property without physical harm is insufficient to violate the law. United States v. Jenkins, supra, 554 F.2d at 785. Section 1361 is a specific intent crime, see United States v. Jones, 607 F.2d 269, 273-74 (9th Cir. 1979), cert. denied, 444 U.S. 1085 (1980), and the government must prove that the defendant acted willfully; that is intentionally, with knowledge that he/she is violating a law. United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972); United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970). The government is not required to prove that defendant knew the property belonged to the government, because government ownership is "merely a 'jurisdictional fact'." United States v. LaPorta, 46 F.3d 152, 158 (2d Cir. 1994), quoting United States v. Feola, 420 U.S. 671 (1975). In fact, title or possession by the United States is not a necessary element of this offense, if the property in question was being made for the United States. The government must present evidence establishing value of damage. United States v. Seaman, 18 F.3d 649, 651 (9th Cir. 1994). The penalties for violations of this section are tied to the extent of the property damage. As amended on September 13, 1994, if the damage exceeds $100, the defendant is subject to a fine of up to $250,000, ten years imprisonment, or both. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 330016, 108 Stat. 1796, 2146-47 (1994). When property damage does not exceed $100, the offense is a misdemeanor punishable by a fine of up to $100,000, one year imprisonment, or both. See 18 U.S.C. §§ 3559(a), 3571.
Thus under the first area 18 U.S.C. § 2071 as the broadest minimal provision for covering this, and five counts can add up to 15 years imprisonment or $10,000 fine or both. I do put forth each separate page as a separate count as each represents a unique document in the Archives. But that could be bargained down to a single count to help matters along. So I use the per-page as a maximum, but do recognize that it would most likely be a single count.

Now looking further down at the easily concrete stuff we get to 18 U.S.C. § 1361 and the willful damage of property and destruction of it. This one would be harder to prove, although showing theft is easy and with admission to destruction of the documents comes the overhead that it is during the act of a criminal enterprise. One is hard pressed to put a monetary damage on mere pieces of paper, however, although an argument can be made on National Security grounds that such information puts the entire Nation at risk and is, at the very least, destruction of the Historical Record of the Nation which is to be passed on so that future generations can make a fair assessment of current Governance. That said fines of up to $500,000 or up to 5 years in jail or both would be the minimum under this area and, if harm to the Union and the historical record are considered to be of value higher than $100, then $1.25 M or 50 years imprisonment or both would be something to consider.

Moving on a bit to the National Archivist, we come to this bit of the US Code in Title 44, 2905 (much thanks to the Cornell Law School on this and their US Code search area):
§ 2905. Establishment of standards for selective retention of records; security measures

(a) The Archivist shall establish standards for the selective retention of records of continuing value, and assist Federal agencies in applying the standards to records in their custody. He shall notify the head of a Federal agency of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency that shall come to his attention, and assist the head of the agency in initiating action through the Attorney General for the recovery of records unlawfully removed and for other redress provided by law. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.
So that, at least, was handled as it should be! Now, some folks may be wondering just what the entire tracking of documents and such that are Classified entails. Luckily the National Archives has that entire procedure listing and such available online.

Now lets start stepping through the various provisions to make sure that Mr. Berger falls under them. Starting with 18 USC 641 we look at the following:
§ 641. Public money, property or records

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—

Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
So the 'value' language is a stumbling block and it really is quite minor. Now, if Congress would ever start putting in words on the sum deals as: "...does not exceed the sum of $1,000 in [YEAR] valuation as adjusted by Bureau of Labor Statistics Price Indicator...". Then we can start talking about having a self-adjusted valuation put on things. That, however, appears to be beyond Congress.

Onto the next area, which is 18 USC 1361, which falls under Chapter 65 of the code on 'Malicious Mischief'! Such a lovely descriptor...
§ 1361. Government property or contracts

Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:

If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.
Again the damages section proves troublesome. But, if a wily Prosecutor wanted to cite instances in which foreigners bombed or otherwise damaged US property and the cost to the Federal Government both in property damage AND in personnel costs, such as the WTC Bombing which is the closest surrogate to the Millennial Bombing Plot, then an easy excess of that amount happens the moment the FBI punches in the case as 'active'. Unlikely to fly, but that would be difficult to assert, although not impossible. Endangering the understanding of exactly *how* the plot was uncovered and *what* the Administration's reaction to that and their understanding of it are keys to formulating a better defense of the Nation against such. The lesser penalties would certainly apply, however.

18 USC 1361 : Max. Penalty - 3 years imprisonment and/or $3,000. Minimum is zero. As was noted by DoJ if the value of the crime can be shown to be over $1,000 then that fine could easily reach $1.25M. Again some sort of 'correlated loss to the Nation as demonstrated by previous acts' would have to be shown, so very unlikely.

Forward, then, to 18 USC 2071 in Chapter 101 'Records and Reports':
§ 2071. Concealment, removal, or mutilation generally

(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
This bit looks a bit more amenable to review, in this case. And here the 'Chain of Custody' is lent out to the person reviewing the work in a secure environment, namely Mr. Berger. He signed for the documents and so they were in his custody and care while he worked upon them and he is fully responsible for them while in his custody. Here the (b) sub-paragraph is the applicable one, as anyone who had a 'My Eyes Glaze Over' experience going to the security of documents area at the National Archives will attest to. Simply put, Mr. Berger signed out the documents, they were in his custody, therefore he has custodial care of those documents until returning them to the individual in charge of signing them in and out. That is WHY the entire document security system is set up. Now the DoJ has cited $2,000 as the current fine on this, so this makes it a bit easier to look at.

18 USC 2071(a) : Max. Penalty - 15 years imprisonment and/or $10,000. Minimum is zero.
18 USC 2071(b) adds forfeiture of office and ability to hold ANY office. Note that the office, in this case, is the Security Clearance as one must duly Swear an Oath to the US to use it. Yes, this would keep Mr. Berger away from *all* Federal jobs.

Now a whole slew of other Statutes are given by DoJ, but the only one of interest is 18 USC 793 in Chapter 37 'ESPIONAGE AND CENSORSHIP':
§ 793. Gathering, transmitting or losing defense information

(f) 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,
(1) 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

(2) 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.
Yes, this one does cover this case pretty well. Some hefty time could easily accrue on this.

18 USC 793 : Max. Penalty - 50 years imprisonment and/or fine. Minimum is zero.

So, given that Mr. Berger admits to theft, concealment and destruction of documents, what does he get? This from Mr. Gerstein's article:
Last year, Mr. Berger pleaded guilty to a misdemeanor charge of mishandling classified information. A magistrate, Deborah Robinson, sentenced the international business consultant to two years' probation and ordered him to surrender his security clearance for three years. Prosecutors and defense lawyers had agreed on a fine of $10,000, but the magistrate boosted it to $50,000.
Two years of probation, which comes out to 100 hours of 'community service' and $50,000.

Having worked with such documents and their security concerns for a number of years, let me say that it is these 'wrist slapping' punishments for things that would get an employee of the Government or one of its Contractors put away for a long jail sentence. That is the threat that is held over the heads of those Federal Employees working with Classified documents and, indeed, with ALL Federal documents. They are not *for* that individual, but for the Government of, by and for the People. What is seen with Mr. Berger is influence purchasing leniency. Even with fessing up, PROBATION would be a damned lucky thing to get added on top of a fine and loss of job, which basically puts a huge black mark on one's record for the rest of their life and makes them unemployable in trustworthy positions.

By structuring a two-tiered system of Justice covering Government Affairs, an Elite class can get away with nearly *anything* while those having to actually work for the Government are given more than a 'slap on the wrist'. Through his connections Mr. Berger is seen as skating around National Security laws and even the basic Laws governing the History of the Government for the People. I clearly remember what a friend of mine at work said when this was first brought to light: 'Ten years, sledgehammer, turning big rocks into small rocks.'

Until those who have gotten privelege face the same Justice as the rest of the People, the view of there BEING an unaccountable Elite group will continue. And that should be anathema to ALL parts of the political spectrum as it is an undermining of accountability of the individual to the People.

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