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Inside Politics

Feds probe Clinton aide over missing papers

Former national security adviser under criminal investigation

Samuel Berger says he made an honest mistake.
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WASHINGTON (CNN) -- Former national security adviser Samuel "Sandy" Berger is under criminal investigation by the Justice Department over allegations that he took secret documents from the National Archives while reviewing Clinton administration records for the 9/11 commission.

Sources said that among the documents Berger took were drafts of a Clinton administration "after-action" report on efforts to thwart the so-called "millennium plot," a suspected al Qaeda attack planned around the New Year's holiday in 1999.

Berger, who was national security adviser during President Clinton's second term, said in a statement Monday that the removal of the papers was unintentional.

He said he returned everything he had after the National Archives told him documents were missing, "except for a few documents that apparently I had accidentally discarded."

In a brief statement to reporters Tuesday night, Berger said that while reviewing documents last year he "made an honest mistake. It is one that I deeply regret." He said any suggestion that he had done anything other than try to aid the 9/11 commission "is simply, absolutely wrong."

Law enforcement sources said archive staff members told FBI agents they saw Berger placing items in his jacket and pants, and one archive staffer told agents that Berger also placed something in his socks.

That latter allegation drew a sharp response from Berger associate and former White House lawyer Lanny Davis, who challenged any unnamed official who makes such an accusation to come forward publicly.

"I suggest that person is lying," he said. "And if that person has the guts, let's see who it is who made the comment that Sandy Berger stuffed something into his socks."

Berger was designated as the official from the Clinton administration who would review documents relevant to 9/11 commission inquiries into the terrorist attacks of September 11, 2001. He also was a witness at commission hearings and reviewed records to prepare for his personal testimony.

In recent months, he has been serving as an informal foreign policy adviser to presumptive Democratic presidential nominee Sen. John Kerry but stepped down from the unpaid position Tuesday, said his lawyer, Lanny Breuer.

The investigation has been under way since October, and its disclosure the week before the Democratic National Convention in Boston, Massachusetts -- and just days before the 9/11 commission is due to release its report -- led some Democrats to question whether the news was leaked for political reasons.

Senate Minority Leader Tom Daschle of South Dakota said he found the timing "very curious, given this has been under way now for this long."

"Somebody leaked it, obviously, with intent, I think, to do damage to Mr. Berger, and I think that's unfortunate," Daschle said.

An administration source told CNN that any suggestion the Justice Department leaked the investigation on purpose now is "simply not true."

Bush campaign spokesman Terry Holt said Berger's decision to leave the Kerry campaign "was appropriate, but there are still questions that remain."

"There are still a lot of questions about whether or not the Kerry campaign benefited from the information Berger took," Holt said.

Kerry's campaign reacted strongly to suggestions by some Republicans that Berger might have passed classified information to it.

"This appears to be a partisan attempt to divert attention away from the 9/11 commission report," Kerry spokesman Phil Singer said. "Instead of using the report's recommendations to learn how we can improve our homeland security, Republicans are playing politics with an inquiry."

Rep. Dennis Hastert of Illinois, the Republican speaker of the House, said he was "profoundly troubled" by the probe and suggested Berger was trying to conceal damaging information from the 9/11 commission.

"What information could be so embarrassing that a man with decades of experience in handling classified documents would risk being caught pilfering our nation's most sensitive secrets? Did these documents detail simple negligence, or did they contain something more sinister?" Hastert said in a statement.

Berger regrets 'sloppiness'

One Berger associate said Berger acknowledges placing his handwritten notes into his pants pockets, and perhaps into his jacket as well.

National Archives policy requires that if someone reviews classified documents and wants to take out handwritten notes, those notes must first be cleared by archivists.

"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 written statement.

A government source said some of the documents at issue were classified as "code word" materials -- the highest level of secrecy in the U.S. government, held more closely than nuclear secrets.

The source said the 9/11 commission was briefed on the Berger investigation, but the White House was never informed of the matter.

Archives officials told investigators that at least one draft of the millennium plot after-action report is still missing.

9/11 panel: Probe won't affect report

But Al Felzenberg, a spokesman for the 9/11 commission, said commissioners have no reason to believe the Berger investigation will affect "the substance or integrity" of its final report, due to be released Thursday.

The 10-member bipartisan panel, formally known as the National Commission on Terrorist Attacks Upon the United States, was established to investigate the events before, during and immediately after the attacks of September 11, 2001.

Felzenberg said the panel "believes it had access to all materials needed to do our report," and was "reasonably certain" it saw all versions of the missing after-action memo.

Associates said Berger knew there were copies of the documents and that former counterterrorism chief Richard Clarke, the after-action report's author, was cooperating with the commission inquiry.

They questioned what motive Berger would have had to take and destroy documents.

Two sources associated with the investigation said Breuer made a detailed statement of Berger's view of the facts at issue several months ago and has offered to talk to the Justice Department about a resolution to the probe.

Breuer has renewed his offer to talk several times since, one of the Berger associates said, but said prosecutors have refused to enter into such discussions.

In the case of the classified documents removed from the archives, the associate said Berger was reviewing thousands of documents and trying to "power read" as much as possible -- placing some in a pile to be forwarded to the 9/11 commission and others in a "nonresponsive" file to be returned, because he did not believe they were relevant to the commission's requests.

Berger has told associates and his attorneys he deliberately set aside drafts of the millennium plot after-action report because it was a longer document and "he knew he needed to take some time on it," according to one adviser.

In Berger's account, after hours of reading documents, he inadvertently took the documents he had set aside to read later along with other materials and a leather portfolio he had carried into the screening room.

CNN's John King, Kelli Arena, Bob Franken and Pam Benson contributed to this report.

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