HERE ARE the two key sentence from yesterdays Washington Post: "[Sandy] Berger returned two of the after-action drafts within days, according to his attorneys. Other drafts of the after-action document, they said, were apparently discarded."
As any lawyer who has ever argued over the contents of a brief knows, the stuff that gets left out can be the most telling material of all--indicative of prejudices and priorities, sensitivities and credibility. Berger's sticky fingers have left a gap in the record of the Clinton administration's response to the growing threat posed by al Qaeda. Unless other files exist with all the same drafts and handwritten notes that Berger destroyed, we will never be able to conclude whether Berger's actions were simply another display of fecklessness and recklessness on an issue of national security, or an attempt to bleach the record of Clinton-era malpractice on matters of terror.
Washington has had to judge gaps in the record before. "[A] few minutes missing from a non-subpoenaed tape hardly seemed worth a second thought," Richard Nixon wrote in his memoir of his reaction on first learning that Rose Mary Woods had deleted a portion of the famous tapes. Nixon would conclude "most people think that my inability to explain the 18 and 1/2-minute gap is the most unbelievable and insulting part of the whole of Watergate." Imaginations ran wild, and Nixon's credibility never recovered.
Now crucial drafts of an important report are missing, and no one has reported if exact duplicates--not "copies"--have been found. Unless and until "red-lined" versions of the previous and following drafts are produced and compared to the "missing" drafts, we will never know what vanished from the record in Berger's pants. Could it have been a reference to Osama's flight from Sudan, or a warning of airplanes as missiles? No one can know unless some other repository existed for all of the drafts, and only if copies of all handwritten notes exist in that same file. The trouble with widely circulated papers is that principals make handwritten notations on all of them, which are then returned to the central record keeper. Every "copy" is an original if a note has been made in the margin.
A COMMISSION STAFFER said with certainty that no gaps exist in the record, but how could they possibly know this if the Department of Justice still has the matter under investigation and if handwritten notes are involved? Further, if handwritten notes appeared on the originals or copies that Berger walked off with, the commission would have to be certain that the "copies" they have been provided were copies of exactly what Berger took away and "lost." Read this laughable, incredible statement from the commission, quoted in the Los Angeles Times: "Al Felzenberg, a spokesman for the Sept. 11 commission, said the panel had been given access to all copies of drafts that were missing, and thought that the integrity of its work had not been compromised. 'We had access to copies of everything we are reading about,' he said."
Reporters who know what a paragraph or two can do to a story and who have seen what a handwritten note can do to a case, are walking away from this story, calmed by the assurances from Berger's lawyer, his friends, and a desperate-not-to-be-discredited commission. Was Rose Woods this well treated? If Condoleezza Rice had stuffed her blouse full of various drafts of pre- 9/11 terrorism reports and then admitted to sloppy work that resulted in the loss of these docs, would promises of copies suffice to quiet a crazed White House press room?
Still wondering about the potential significance of a single draft, or small changes between drafts? Recall that on January 11, 2001, the Los Angeles Times deleted a reference to Juanita Broaddrick from a George Will column on the legacy of Bill Clinton. I caught the censorship on air, and the wave of reader outrage that followed forced an admission of guilt and an apology from the paper. The Times's attempt to hide a single phrase from its readers told you volumes about the paper--and about the significance of Broaddrick to the Clinton legacy.
We will probably never know what Berger erased from the record. The idea that he smuggled sensitive documents and then "lost" them is absurd. If there were "damning admissions against interest," as trial lawyers like to say, among the papers, Berger probably could be counted on to arrange the carrying away and return of enough paper as to obscure the trail and cloak the reference. Why has the investigation gone on so long? There is a complex paper trail here, and hopefully the government is attempting to recreate everything that was in the archive before Berger scarred it. That will take a long time, perhaps even requiring the fetching of computers and the recreation of electronic transmissions.
But eventually the public needs to know not what was attempted to be excised from the archive--it may be too sensitive to reveal--but only if there was information unique to the draft(s) that Berger lost. If there was, Berger wasn't being sloppy. He was being precise.
Finally, the Kerry campaign quickly assured everyone that it knew nothing. It is interesting that Nixon tried to persuade the public of the very same point. You don't believe Nixon, do you? "[T]o this day many people are not aware that Rose was exonerated by the Special Prosecutor in regard to the 181/2-minute gap," Nixon noted in his memoir:
Rose Woods testified under oath concerning the 18 and 1/2 minute gap before a court hearing and the grand jury. In the hearing she was subjected to hours of merciless cross-examination on this issue. On July 17, 1974, Leon Jaworski informed Rose's attorney that no case had been developed of any illegal action of any kind by Rose, and that no charges would be made against her. He said that his assistant, Richard Ben-Veniste, agreed.
Has Berger been before a grand jury yet? Is Ben-Veniste as aggressive on gaps in the record today as he was 30 years ago?
Hugh Hewitt is the host of a nationally syndicated radio show, and author most recently of If It's Not Close, They Can't Cheat: Crushing the Democrats in Every Election and Why Your Life Depends Upon It. His daily blog can be found at HughHewitt.com.