Is he a criminal or a klutz?

Is Samuel "Sandy" Berger a criminal, a pilferer, a sneak, or just clumsy?

Nearly a year ago, we just learned this week, Berger—who was President Clinton's national security adviser—removed some highly classified documents from the National Archives without permission and failed to find one or two of them when officials discovered they were missing and asked him to give them back.

Berger had been poring over hundreds of documents, at Clinton's request, in preparation for testimony before the 9/11 commission. This was legal and routine. The federal statute controlling the National Archives and Records Administration states, "The presidential records of a former president shall be available to such former president or his designated representative." Berger was the designee.

However, the statutes expressly forbid anyone from taking such documents out of the building.

Berger claims the removal was inadvertent. His lawyer, Lanny * Breuer, explained to CNN's Wolf Blitzer that Berger had brought a leather portfolio into the archives vault and, somehow, a couple of documents—including a copy of Richard Clarke's 15-page "millennium threat" report—got "enmeshed" in his own papers. Berger didn't know he was removing any documents. A month later, when archive officials told him the documents were missing, he returned most of them. At least one document was missing and may have been thrown away.

A few questions come to mind:

How typical was Berger's action—or, depending how you see it, his lapse? Did it have any impact on the 9/11 commission's investigation? Did he swipe the document for political purposes? Could the act have damaged national security? Whatever the motives or impact, was the act criminal?

First, was it typical? Many former officials—even if their security clearances have long expired—obtain permission to enter the vaults and read classified documents dealing with matters from their heyday. They do this not only to prepare for official investigations, as Berger did in this case, but also to research their memoirs. Two U.S. archivists, who asked not to be identified, told me that they don't know of any cases in which ex-officials sneak documents home (and sneak them back in) but that they'd be surprised if it never happened.

In this respect, some of the recent news accounts are just odd. A few stories noted that archive officials saw Berger stuffing documents in his pants pocket, jacket pocket, and even in his socks. This seems unlikely. First, if these officials saw this going on, why didn't they report it or confront Berger directly at the time? Second, whenever anyone examines classified material in a vault at the National Archives, a security official watches what's going on all the time. Berger could not have surreptitiously tucked away some secret papers while nobody was looking. Third, the two U.S. archivists tell me that the archive's guards almost never inspect ex-officials' briefcases when they leave the vaults or the building. Berger had a portfolio for papers. Surely if he'd wanted to take some papers out, he could have stuffed them into it. (Berger's lawyer said he'd put some notes in his pocket—more plausible, though also, it should be noted, improper. Section 202 of the National Archives' "Information Security Manual," which is not on the agency's Web site, states that anyone allowed access to the vaults must agree to "a review of his or her notes to make sure they do not contain classified information.")

Second, did this have any impact on the investigation? Did Berger (as at least one Republican charged) block the 9/11 commission from seeing any documents that might have been embarrassing to the Clinton administration? Clearly not. The commission saw everything, including the papers Berger was examining, well before Berger did.