The death of Sandy Berger, U.S. President Bill Clinton’s national security adviser, is a moment to recall the dangers that can be invited by ad hominem politics. For on four occasions Berger was presented with plans to attack Al-Qaida. Four times he said no — or proved to be an obstacle. Why was this kind of decision left largely, if not entirely, to a presidential underling like the national security adviser? Thereon hangs the cautionary tale.
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It turns out that Clinton was pre-occupied with his pending impeachment. This is no personal attack on Berger. I never met him and am not a foe of President Clinton, for whom I voted twice and twice endorsed in editorials for the Forward. It was the 9/11 Commission itself that sketched Berger’s tale. It vindicated a famous warning against the danger of harassing a president, a warning made in one of the most famous dissents ever issued in a Supreme Court case.
The warning came from no less a sage than Justice Antonin Scalia in a case known as Morrison v. Olson. It concerned the constitutionality of an independent prosecutor, one who could not be removed by the president. The argument that such an arrangement was unconstitutional was made by Theodore Olson, who was under investigation by just such a prosecutor. The prosecutor eventually cleared Olson, but only after the high court ruled that the independent counsel law was constitutional.
Justice Scalia didn’t agree. In his dissent he warned against subjecting any president to harassment by a prosecutor outside of the normal political controls. He quoted Thomas Jefferson’s warning against exposing presidents to the common courts and letting them be dragged from “pillar to post.” Scalia worried that a president’s courage could be shaken. “Perhaps the boldness of the President himself will not be affected,” he wrote, “though I am not so sure.”
That was in 1988, when President Reagan was still in the White House. Now fast forward to the late 1990s, when President Clinton is being pursued by independent prosecutors. The 9/11 Commission cited a meeting between Berger and the director of central intelligence, George Tenet at the time, which was 1998. Tenet presented a plan to capture Osama bin Laden. Berger futzed around. “He worried that the hard evidence against Bin Laden was still skimpy and that there was a danger of snatching him and bringing him to the United States only to see him acquitted,” the report said.
The next year, another plan for action was presented, this time against an Al-Qaida camp known as Tarnak Farms. It was in Afghanistan. The 9/11 Commission’s report cited Berger’s “handwritten notes” worrying about casualties. Late that year, the Commission reported, Berger wrote in the margin of another proposal to attack against Al Qaida camps in Afghanistan the word “no.” In August 2000, Berger was presented with yet another plan, this one for attacking Bin Laden himself.
Berger not only hemmed but also hawed. He sought various assurances that Bin Laden would remain in place until the date of the attack. Historical hindsight is a dangerous game and Berger by all accounts was a wonderful man. But the picture sketched by the 9/11 Commission suggested that if Berger had been more open to pre-emptive action, the attacks that plunged America into war might not have taken place — even if the moral culpability rests solely with Al-Qaida.
So why, the New York Sun asked in an editorial when the 9/11 Commission report came out, was it “Mr. Berger rather than President Clinton himself making all these judgment calls?” The way the report put it is that the decisions “were made by the Clinton administration under extremely difficult domestic political circumstances. Opponents were seeking the president's impeachment.” Not that it was the prosecutor’s fault either. But harassing a president is a dangerous game.
It certainly seems that the boldness of the president was lost in Clinton’s later years. A thought that I offer not to tarnish the record of Sandy Berger, who is being widely mourned as an American patriot. Nor would anyone suggest that Congress be shorn of its power to remove a president, something that can be done abruptly through the impeachment process. Rather it is to underscore the importance of watching out for one’s commander in chief, for sustaining him or her, in a time of war — a point to remember both in Israel and America.
Seth Lipsky is editor of The New York Sun. He was foreign editor and a member of the editorial board of The Wall Street Journal, founding editor of the Forward and editor from 1990 to 2000.