WASHINGTON -- President Clinton's national security adviser, Samuel R. Berger, is the focus of a criminal investigation after removing highly classified terrorism documents and handwritten notes from a secure reading room during preparations for the Sept. 11 commission hearings, the Associated Press has learned.
Berger's home and office were searched earlier this year by FBI agents armed with warrants after he voluntarily returned documents to the National Archives. However, some drafts of a sensitive after-action report on the Clinton administration's handling of Al Qaeda terrorist threats during the December 1999 millennium celebration are still missing.
Berger and his lawyer said last night he knowingly removed handwritten notes he had made while reading classified antiterror documents he reviewed at the archives by sticking them in his jacket and pants. He also inadvertently took copies of actual classified documents in a leather portfolio, they said.
"I deeply regret the sloppiness involved, but I had no intention of withholding documents from the commission, and to the contrary, to my knowledge, every document requested by the commission from the Clinton administration was produced," Berger said in a statement to the AP.
Lanny Breuer, one of Berger's attorneys, said his client has offered to cooperate fully with the investigation but had not yet been interviewed by the FBI or prosecutors. Berger has been told he is the subject of the criminal investigation, Breuer said.
Berger served as Clinton's national security adviser for all of the president's second term and most recently has been informally advising Democratic presidential candidate John F. Kerry.
Clinton asked Berger last year to review and select the administration documents that would be turned over to the commission.
The FBI searches of Berger's home and office occurred after National Archives employees told agents they believed they witnessed Berger place documents in his clothing while reviewing sensitive Clinton administration papers, officials said.
When asked, Berger said he returned some classified documents that he found in his office and all of the handwritten notes he had taken from the secure room, but said he could not locate two or three copies of the highly classified millennium terror report.
"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.
Breuer said Berger believed he was looking at copies of the classified documents, not originals.
Berger was allowed to take handwritten notes but also knew that taking his own notes out of the secure reading room was a "technical violation of Archive procedures, but it is not all clear to us this represents a violation of the law," Breuer said.
Government and congressional officials familiar with the investigation, who spoke only on condition of anonymity because the probe involves classified materials, said no decision has been made on whether Berger should face criminal charges.
The officials said the missing documents were highly classified, and included critical assessments about the Clinton administration's handling of the millennium terror threats as well as identification of America's terror vulnerabilities at airports and seaports.
Berger had ordered his antiterror chief, Richard Clarke, in early 2000 to write the after-action report and has publicly spoken about how the review brought to the forefront the realization that Al Qaeda had reached America's shores and required more attention.
Berger said in testimony earlier this year that during the millennium period, "we thwarted threats and I do believe it was important to bring the principals together on a frequent basis" to more regularly consider terror threats.
The missing documents involve two or three draft versions of the report as it was evolving and being refined by the Clinton administration, according to officials and lawyers.
The Archives is believed to have copies of some of the missing documents.
Breuer said the Archives staff first raised concerns with Berger during an Oct. 2 review of documents that at least one copy of the post-millennium report he had reviewed earlier was missing.
Berger was given a second copy that day, Breuer said.
Officials familiar with the investigation said Archives staff specially marked the documents, and when the new copy and others disappeared, Archives officials called Clinton attorney Bruce Lindsey to report the disappearance.
Berger immediately returned all the notes he had taken, and conducted a search and located two copies of the classified documents on a messy desk in his office, Breuer said.
An Archives official went to Berger's home to collect those documents, but Berger couldn't locate the other missing copies, the lawyer said.
He retained counsel, and in January the FBI executed search warrants of a safe at Berger's home as well as his business office where he found some of the documents. Agents also were unable to locate the missing documents.
Justice Department officials have told the Sept. 11 commission of the Berger incident and the nature of the documents in case commissioners wanted more information, officials said. The commission is expected to release its final report Thursday.