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Why Didn't Bacon Get Fried?

The Pentagon's anti-Tripp leakers get a slap on the wrist, and the Privacy Act a slap in the face

Jun 12, 2000, Vol. 5, No. 37 • By JAY NORDLINGER
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It's just a small matter, in all the Clinton grossness, but it counts. Linda Tripp was the victim of a dirty, and illegal, trick. It was played on her by her own bosses at the Pentagon. And now those men -- Kenneth Bacon and Clifford Bernath -- have escaped with the wispiest slaps on the wrist. This is ho-hum for the Clinton administration; but it is a reminder of how unlawful and indecent this administration has been.

Before this little affair slides all the way down the memory hole, recall the essential facts: In January 1998, the Lewinsky scandal exploded on Bill Clinton's head. From the point of view of the White House, Linda Tripp was the major villain. It was therefore a matter of urgency to discredit her. In March, Jane Mayer, a Clinton-friendly reporter for the New Yorker, acquired what seemed a valuable piece of information: Tripp, as a teenager, had been arrested for larceny. Mayer put in a call to Ken Bacon, assistant secretary of defense for public affairs. He was an old friend; the two had worked together at the Wall Street Journal. Mayer had an amazingly specific question for him: How had Tripp responded to Question 21, parts a and b, on Form 398? This was a highly sensitive national-security questionnaire, under the eye of the Privacy Act Branch of the Defense Security Service; Question 21 dealt with arrests and detentions.

Bacon quickly swung into action. He ordered his deputy, Cliff Bernath, to get Mayer her answer. Hours before the reporter's deadline, Bernath told her not to worry: "Ken has made clear it's priority." Moving heaven and earth, and alarming career officers as he went, Bernath delivered -- right on time.

It looked like bad news for Tripp: She had not, in fact, disclosed on Form 398 her 1969 arrest. Bernath told the New York Times that Tripp faced the "very serious charge" of lying to the government. Defense secretary William Cohen declared on CNN that Tripp was "guilty of a contradiction of the truth," which would be "looked into." It soon emerged, however, that Tripp's arrest had been the result of a juvenile prank, perpetrated against her. The judge had reduced the charge to one count of loitering, telling her, as she recalled it, that her record would be clear. The Pentagon, rather sheepishly, dropped its investigation of Tripp. Instead, Congress demanded that the department investigate Bacon and Bernath -- for violating the Privacy Act. In their attempt to help Mayer nail Tripp, the two men seemed to have nailed themselves.

The Pentagon's inspector general, Eleanor Hill, duly launched an investigation. The case being clear-cut, it didn't take her long to find that Bacon and Bernath had indeed violated the Privacy Act. In July 1998, she referred the matter to the Justice Department -- which then sat on it for almost two full years. This would have been incomprehensible in any other administration. Only in April 2000 did Justice announce that it would not prosecute. Incredibly, the department claimed that there was "no direct evidence upon which to pursue any violation of the Privacy Act."

It was then left to Secretary Cohen to determine a penalty for Bacon and Bernath -- if any. What he decided to do was write a letter expressing his "disappointment" in the men. Each would receive a copy. In this letter, Cohen said that his subordinates' actions had been "hasty and ill-considered." He noted that, at the time of the incident, they and others at the Pentagon were under instruction not to release anything concerning Tripp without first consulting department lawyers. The strongest language he used was "serious lapse of judgment." But this was balanced against "the very high quality of the performance that you have otherwise exhibited." Amazingly, Cohen told the press that "there was no attempt to injure Miss Tripp's credibility or her reputation."

Contemplating this, Dick Morris, the former Clinton adviser, had no choice but to remark, "Generally, it is a good political rule never to say anything that the average 6-year-old knows isn't true."

The most striking thing about the Cohen letter is that it will not even be placed in either Bacon's or Bernath's permanent file. According to the Pentagon, this is not a letter of reprimand. A department spokesman, Craig Quigley, described it as "a personal letter to both Mr. Bernath and Mr. Bacon." Incredulous, a reporter said, "So, it's not a letter of reprimand?" "No," said Quigley. "Well, what would you call it?" Said Quigley, "It's an official letter expressing the secretary's disappointment in the judgment" of the two officials.