Pickard flinched at the orders, but he was in no position to argue. He gave Ashcroft the first of his weekly briefings in June. Before the meeting, Pickard sent an agenda to Ashcroft’s office of the issues to be discussed. Terrorism was the number one item on the list. By the time of the first briefing, the CIA’s warnings about an al-Qaeda attack were dire; they were reported to be the most serious and most convincing warnings of a terrorist strike since the millennium. So Pickard figured it was the first issue he should discuss with Ashcroft. During the briefing, Ashcroft suggested he knew little about al-Qaeda, so Pickard offered a primer on the terrorist network and its murderous history. “I told him about al-Qaeda and bin Laden, a little history about the World Trade Center bombing and East Africa.”
Ashcroft listened, but he seemed far more intrigued by other items on the agenda, especially the latest on the FBI’s efforts to end delays on background checks for gun buyers. Pickard said that over the course of the summer, most of his contacts from Ashcroft involved problems with the background check system, which was administered by the bureau. Ashcroft’s interest was obviously prompted by complaints to his office from the NRA’s lobbyists, Pickard figured. “He was like their poster boy,” Pickard said of Ashcroft’s relationship with the gun group. “People would get denied when they tried to buy their guns, and then the NRA would call him, and then I’d hear about it.”
Pickard opened the next briefing, on July 12, 2001, with the latest on the CIA warnings about an al-Qaeda attack.
“We’re at a very high level of chatter that something big is about to happen,” Pickard began. “The CIA is very alarmed—”
He had barely begun the presentation when Ashcroft jumped in angrily. “I don’t want to hear about that anymore,” he said. “There’s nothing I can do about that.”
Pickard was dumbfounded; the attorney general didn’t want to hear anything more about threats of an imminent terrorist attack? Yes, the warnings pointed to an attack overseas. But how could Ashcroft be so sure that the attack might not happen here?
“Mr. Attorney General, I think you should sit down with George Tenet and hear right from him as to what’s happening,” Pickard said.
“I don’t want you to ever talk to me about al-Qaeda, about these threats,” Ashcroft said. “I don’t want to hear about al-Qaeda anymore.”
Pickard thought the situation was absurd. Ashcroft was not interested in terrorist threats? Shouldn’t the FBI and the other law enforcement agencies that answered to Ashcroft—the Immigration and Naturalization Service, the Border Patrol, the Marshals Service—be readying themselves for the possibility of an attack?
Pickard was furious. With his retirement so close, he figured he had nothing to lose and would make his anger clear to Ashcroft. “I got up out of my chair, and I got in his face,” Pickard said. “And he got in my face.” According to Pickard, others in the room watched, astonished at what they were seeing—the makings of a street brawl between the two most powerful men in federal law enforcement. (Aides to Ashcroft said later that nothing like that happened and have disputed much of the rest of Pickard’s account, including his description of Ashcroft praying in his office.)
As Pickard and Ruben Garcia left Ashcroft’s office, Garcia turned to Pickard. “I thought you were going to kill him,” Garcia said. “You jumped out of the chair so fast, I could see your gun.” Like other FBI agents, Pickard usually wore a gun beneath his jacket while on duty. “I thought you were going to use it,” said Garcia.
Within days of the July 12 briefing, Ashcroft offered a final demonstration of his lack of attention to terrorism. In its annual budget request, the FBI had asked for a sizable budget increase for only one of its divisions—counterterrorism. But on July 18, Ashcroft sent a letter to Pickard saying the request had been turned down and that several FBI divisions faced budget cuts, including counterterrorism. Pickard contacted Ashcroft’s office to ask if he might appeal. Ashcroft agreed. Pickard sat down “with the assistant directors that July and decided that we would appeal only the terrorism cuts—that’s the only thing we’re going to appeal because it’s the most important thing. We’ll drop everything else.” He would not hear back from Ashcroft for several weeks.
Pickard slept on his couch at FBI headquarters on the evening of September 11, 2001; the skies over the Potomac were still gray with smoke from the Pentagon. His wife came into Washington to bring him a change of clothes. The next morning, Pickard’s secretary walked into his office, a sly smile on her face. She flipped a copy of a letter from Ashcroft onto Pickard’s desk. It was a denial of his request for more money for the counterterrorism division. The letter was dated September 10, 2001. “I just threw it aside,” Pickard remembered. “I couldn’t think about it.”
As Pickard told his remarkable story to the 9/11 commission investigators, Jacobson and Barnes eyed each other nervously. Were they really hearing this about Ashcroft? Was it possible that the attorney general had simply ignored terrorist threats in the summer of 2001—that he had just been too bored by the subject to mobilize the Justice Department for an imminent attack? Pickard spoke with conviction about what had happened, and he had details, and Jacobson and Barnes had little doubt that he was telling the truth.
36
K STREET OFFICES OF THE 9/11 COMMISSION
Washington, D.C.
JANUARY 14, 2004
Mike Hurley, the Team 3 leader, and his colleagues wondered if Sandy Berger was ill. Berger had arrived in the commission’s offices on K Street on January 14, 2004, for what was scheduled to be an all-day interview, a preview of testimony that Berger was scheduled to give at a public hearing that spring. Hurley’s team wondered if the interview should be called off. Berger looked terrible. His hands were shaking badly, and the tremors only seemed to grow worse as the interview went on. At one point, he had to hold one hand down with the other to stop the shaking.
Every half hour or so, Berger would ask that one of the commission staffers go out to the street and buy him a large cup of coffee from the nearby Starbucks. “It’s like he’s chain-drinking the coffee,” one of the Team 3 investigators said later. It was one cup after the other. Berger ignored the sandwiches that had been brought in for the session; he nibbled on the corner of one of the home-baked cookies that Alexis Albion had provided that morning.
If this was a display of nerves, it was especially odd to see it from Berger. Whatever his private insecurities, he was known in the Clinton White House for his gruff, good-humored cool in most public settings; he had always been a natural on the Sunday television talk shows for just that reason. Now he was nothing but nerves—caffeine-jangled nerves at that.
Hurley and the others did not know it at the time, but Berger had reason to be panicked. He had learned weeks earlier that he was under criminal investigation by the Justice Department over the theft of classified documents from the National Archives—specifically, several copies of Richard Clarke’s secret 2000 after-action report on the millennium terrorist threats. Berger knew that at the Justice Department, a few prosecutors who ultimately answered to the Bush White House were reviewing evidence that had the potential of destroying his reputation and ending his career—even of sending him to prison.
TO THE ARCHIVES staff, there was no doubt about what Berger had done. They believed they had proved the thefts conclusively during his fourth and final trip to the archives three months earlier—on October 2, 2003—to review the Clinton White House’s intelligence files. He was preparing at the time for his interviews with the 9/11 commission.
Suspicious that he had taken something in his earlier trips in 2002 and 2003, Nancy Kegan Smith, the senior archivist for White House documents, had gathered the classified files that were supposed to be presented to Berger in October and numbered the back of each document in a light pencil. The files that Berger had reviewed in his earlier visits were mostly uncataloged; they were so highly classified that only a few archives workers would have had the security clearance
needed to prepare an index. So if Berger had taken something in his earlier visits, the archives might never be able to document exactly what was missing.
As Smith had feared, Berger took the bait during the October visit. In his search of the files that day, Berger found two more copies of Clarke’s 2000 report, and he set them aside to be stolen. The staff suspected in his earlier visits that he used his frequent trips to the men’s room to hide stolen documents in his clothes. And the pattern repeated itself in October. He began visiting the bathroom frequently, every thirty minutes or so, even though the archives staff knew that Berger did not have much to drink that day.
During one of his bathroom visits, most of Smith’s colleagues hurriedly went through a stack of documents that Berger had just reviewed, checking to see if anything was missing. She started counting: Documents 213, 214, 215, 216 . . .
Document 217 was missing; it was yet another copy of Clarke’s 2000 report. Dismayed, Smith and her colleagues quickly printed another copy of it. When Berger returned from the bathroom, Smith presented him with the new copy.
“We apparently forgot to give you this document,” she told Berger, trying to hand him another copy of Document 217.
He looked at it. “No, I think I’ve already seen it,” he replied.
Smith insisted that he take another look at it; she told him the archives had a method of tracking the documents that Berger had been given during his visits. She said she needed to feel confident that Berger, as President Clinton’s liaison to the 9/11 commission, had seen all of the documents in the archives’ possession.
In fact, Smith was giving Berger a final test, setting a final trap. Would he steal this copy as well?
Berger said later he should have realized at that moment that the archives staff was on to him. Why else would Smith be making a special effort to present him with, of all documents, yet another copy of Clarke’s report? “The bomb should have burst in the air,” he said later. “But obviously it did not.”
Berger stole that copy, too. He used the same method for the theft. He asked Smith for a few minutes of privacy, claiming that he needed to make a phone call. Smith left the room and went to a nearby desk that shared the same telephone lines. She could see that Berger had lied; he was not using the phone in her office—the line on the phone did not light up. She rushed back to her office to try to catch him in the act. But she was nearly “mowed over” by Berger as he charged out the door for the bathroom again.
The archives staff did a final tally and determined that all three copies of Clarke’s report, plus the extra copy that Smith had presented to him, were gone. “The staff and I were almost physically ill,” Smith said.
At about 6:00 that night, Berger told Smith that he wanted to leave for the day; he was exhausted.
“I just can’t do this anymore, Nancy,” he told Smith. “My mind is a dishrag.”
She did not feel she had the authority at that moment to confront Berger and accuse him of stealing classified documents. But she apparently did not want to contemplate the idea that Berger would return to the archives and steal more from the White House files. She suggested that he take a walk and try to finish up the rest of the documents.
Berger agreed reluctantly. But rather than walking the hallways of the archives, he left the building altogether. He walked out of the north entrance of the archives onto Pennsylvania Avenue. He had the four copies of Clarke’s report and about fifteen pages of his notes from the visit stuffed in his pockets. He crossed Pennsylvania Avenue to a construction site on 9th Street.
He pondered his options. Did he really want to walk back into the archives with the stolen documents? Did he want to risk two more opportunities for detection—as he walked back in and walked back out?
Why don’t I put these documents in a place where no one can see them? he thought. It was, he acknowledged later, a “logical impulse in a totally illogical context.” The construction site was ringed by a wire fence. It was twilight. He emptied his pockets and folded the papers into a V shape. He placed the folded documents beneath a trailer on the site.
His self-described “craziness” grew worse. He now had five copies of Clarke’s 2000 report—four he had stolen that day and one taken during an earlier visit. After he returned to the construction site later that night to gather the documents, Berger drove back to his downtown office and used scissors to cut up three of the copies of Clarke’s report into small pieces, which he placed in his office trash can. He still had two other copies of the report; he did not need five.
THAT WEEKEND, Berger learned that he had been found out. He got a call at home from Smith on Saturday, October 4. The archives staff had spent most of Friday and Saturday morning trying to figure out what to do, and the decision was made to have Smith phone him and question him directly about the thefts. She told him that at least three of the documents that he had reviewed were missing. Did he have them? Could he look for them?
Berger was petrified. He initially tried to pretend he was indignant with Smith and her staff, accusing the archives of losing the documents and of trying to blame him for the loss. She urged him to keep looking.
“I hope you can find them because if not, we have to refer this to the NSC,” she said ominously. The NSC—the White House, in other words—had formal control over the archives, and National Security Adviser Condoleezza Rice’s staff would have to be notified about what had happened. Smith urged Berger to go to his office to search.
Berger got into his car and drove to downtown Washington, his mind a blur of panicked thoughts. Should he admit what he had done? Would he be prosecuted? Could he convince the archives not to reveal to the Justice Department what he had done? He could only imagine what the Bush White House would do with this, how Bush’s aides would wait for just the right moment to leak it. Berger was going downtown with the intention of rummaging through his trash can. He hoped that perhaps the trash had not been picked up since Thursday, that the pieces of the documents he had cut up with scissors might still be there. If he could present the documents to the archives, even in pieces, perhaps he would be treated less harshly. His heart sank when he entered his office; the trash can was empty. He tried to find a telephone number for the waste disposal company that picked up the trash in the office building. No luck.
Later that night, Berger spoke by phone with another senior official of the archives.
“I think I solved the mystery,” he said, trying to sound unconcerned, as if this were all an understandable, innocent mistake. “I found two documents”—the pair of copies of Clarke’s after-action report that he had not destroyed. The archives was welcome to come pick them up, he announced.
The archives felt it had no choice but to notify the White House about what had happened. On Sunday, the archives called the White House and asked to speak to someone at the NSC. An NSC lawyer provided the archives with the names of lawyers at the Justice Department who would need to be contacted about a criminal investigation of Berger. Berger had already called his own lawyer.
DESPITE THE caffeine buzz that only increased the shaking of his hands, Berger was able to answer questions coherently during the January interview at the commission’s offices. Berger took a little comfort from the fact that the commission’s staff seemed to know nothing about what had happened at the archives.
He had gone into the meeting with several “talking points.” He wanted to make it clear to the commission and its staff that he believed Bill Clinton had taken al-Qaeda seriously, as seriously as any other national security threat, and that the Clinton White House had done what it could to try to kill Osama bin Laden. Not wound or capture him. Clinton had given explicit authority to the CIA to kill bin Laden, Berger said. “He wanted him dead.”
The remark created confusion among some of the members of Team 3. Was this just bluster on Berger’s part? In interviewing George Tenet’s deputies at the CIA, the commission’s staff had been told again and again that the agency had not been auth
orized to kill bin Laden and his henchmen—that the CIA had instead been given a confusing set of presidential orders that allowed for bin Laden’s capture, but not his death. Within the CIA, the common wisdom was that overly cautious lawyers at the White House or at Janet Reno’s Justice Department were wary of anything that resembled an assassination order.
Told of the CIA complaints, Berger looked confused. No, he assured the commission’s staff, there was an explicit, if highly secret, order given by Clinton to the CIA in late 1998 to kill bin Laden. It was part of a so-called memorandum of notification, or MON, involving Afghanistan. MONs were top-secret orders prepared by the White House to authorize covert operations abroad by the CIA. “There is paperwork,” Berger said. “Keep looking for it.”
Berger also wanted to overcome any perception that Clinton had been hindered in dealing with al-Qaeda because of his many personal scandals, in particular the furor over Monica Lewinsky. Berger said it was remarkable how little Clinton allowed the scandals to affect his performance as president, most impressively in the summer of 1998. On August 7, the American embassies in Kenya and Tanzania were blown up by al-Qaeda followers, killing 224 people, including 12 Americans. That same month, the Lewinsky scandal was at its height, with Clinton scheduled to testify before a grand jury on August 17 about his relationship with the former intern. A special prosecutor, Kenneth Starr, was only weeks away from presenting a report to Congress that was expected to accuse Clinton of several impeachable offenses, including lying about his relationship with Lewinsky. (Starr’s report was finally released to the public on September 11, 1998, exactly three years before the attacks on the World Trade Center and the Pentagon.)
The Commission Page 29