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July 22, 2004

Sandy Berger's Non-Alibi

There's an old saying: Never ascribe to malice what can be explained by simple incompetence or coincidence.

There are a couple of problems with this rule. For one, it apparently hasn't been in operation through Bush's term; regarding Bush, everything is explained as resulting from both malice and incompetence. (I don't know about coincidence.)

For another, it's not so much a rule as a caveat. And it's missing a key caveat of its own. It should read: Never ascribe to malice what can be more reasonably explained by simple incompetence or coincidence.

"More reasonably" is the key. If a man is having an affair, takes out a big insurance policy on his wife, has a bunch of unexplained phone calls to seedy areas, has a bunch of big unexplained withdrawals from his banking accounts, and then his wife "coincidentally" turns up dead, executed gangland-style with two shots to the back of the head, one would say that the "incompetence" or "coincidence" explanations begin to look a tad unlikely -- no one gets this lucky -- and that a more likely explanation is that all these facts are in fact connected -- by malicious intent.

Berger and his defenders are relying upon claims of "incompetence" and "coincidence." He "sloppily" stuffed top-secret documents into his socks. He "accidentally" slipped top-secret memos into his leather portfolio. He then "inadvertantly discarded" a top-secret document.

How many accidents and coincidences are legal defenses allowed before becoming "ridiculous on their face" (sic)?

Perhaps this is all a mix of incompetence and coincidence. However, one begins to wonder if these facts aren't more reasonably explained by conscious design.

As you're probably aware, these memos reportedly contained embarassing information about Clinton's handling of terrorism and security. How embarassing? Worth-destroying-embarassing? I don't know, and the only people who do know aren't talking-- yet.

But maybe Sandy Berger took the memos because he intended to. And then maybe Sandy Berger destroyed a memo because he intended to.

Sandy Berger's defenders have an alibi against this theory. Or so they say. They claim that Berger couldn't possibly have taken these memos in order to destroy them or hide them from others, because copies of these memos exist. Since copies exist, therefore he could not accomplish any favorable result by stealing the documents. Therefore, he couldn't have stolen documents and destroyed/"discarded" at least one of them in order to prevent them from being discovered.

Q.E.D. Or not.

This defense is bullshit. The fact that the defense is bullshit doesn't mean that the theory is correct, of course. The theory is probably not correct, because, well, it's just too delicious to be dreamed; but even still, these defenses are "ridiculous on their face" (sic).

This theory relies upon an unstated assumption: There is no reason to steal or hide or destroy a document unless doing so makes it impossible for one's opponents to see.

If that assumption isn't true, the theory falls apart. Berger's spinners say he couldn't have tried to hide these documents, because there was no way to make it impossible for others to see them; the existence of other copies would always make it possible for someone else to see the documents.

But do people only conceal evidence when doing so makes it impossible that one's opponents will see the evidence?

Prosecutors are required by law to disclose exculpatory information to the defense. But they frequently do not-- at least not until forced to by an angry judge.

They will sometimes claim that exculpatory information is actually meaningless or inculpatory, and thus not required to be disclosed. They will claim they never saw the information at all, thus relieving them of the duty to disclose. They will sometimes attempt to slip in a report which damages their case in a blizzard of thousands of meaningless pages of testimony and reports, in the hopes that, while they are technically providing the evidence to the defense, there's only a small chance the defense will actually find the one needle in the paperwork haystakc.

They will, in short, do an awful lot of things to avoid giving some evidence to the defense.

But they usually won't actually destroy evidence that hurts their case; few want to risk jail by taking that drastic step. Instead, they simply make it as hard as possible for the defense to see the information; they make it as unlikely as possible the defense will ever so much as hear about the evidence.

The prosecutors haven't made it impossible for the defense to receive the evidence. The evidence still exists, somewhere, in a file or in a desk or in an evidence lock-up. The defense can still get its hands on it-- if it specifically knows what to ask for, and demands specifically that it turned over.

And then convinces a judge of the need to have the evidence.

Now, if prosecutors sometimes bend or break the law to make it merely difficult, albeit not impossible, for their opponents to receive evidence helpful to their case and harmful to the prosecutors', why can't Sandy Berger?

Let us stipulate that there were other copies of these memos available elsewhere. (Although, as we're dealing with top-secret codeword-classified information, there wouldn't be many copies-- the whole idea is to have just a few copies one can keep track of.)

But Sandy Berger stole the copies which were actually available for the 9-11 commission (and those who would testify before it) at the National Archives.

Wouldn't the absence of the documents from those files have made it less likely that they would be read?

Yes yes, if someone noticed a missing memo -- or a missing early draft to a memo -- they might notify the custodian and ask for a new copy. But that assumes they 1) notice at all and 2) think the memo is interesting enough to bother with and then 3) actually follow-up on the lost document.

Should any of these steps be missed, the document wouldn't get read.

Bear in mind-- we're talking about tens of thousands of pages of documents here. Unless someone knew they were specifically looking for this particular memo-- there's a good chance they'd never read it, even though they technically could have read it, had they known enough to ask about it and follow-up.

One last point: All the theories-- except this one --are sort of hard to believe because they have Sandy Berger risking 10 years in a federal prison in order to achieve some minor personal benefit.

They don't seem to make sense for that reason. The risk far exceeds the potential benefit.

Only in this last theory is the benefit -- denying a smokin'-gun memo to the Republicans -- anywhere near equal to the risk.

Again, that doesn't make this speculation true. Sandy Berger might merely be an arrogant imbecile who broke the law because he thought, hey, he's fuckin' Sandy Berger, right?

But let's stop with the "Sandy Berger just couldn't have intended to perform all the actions he actually did perform" crap. He could have, and until he offers an accounting of his "inexplicable" behavior that actually makes sense, I'm not inclined to rule anything out, and neither should anyone interested in our national security.

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posted by Ace at 02:03 AM

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