Editor's note: This story has been updated to include new information about the filing of FOIA request by a good government group seeking documents related to the destruction of the emails.
The National Archives and a watchdog group sent letters to the Justice Department (DOJ) Thursday demanding an investigation into the destruction of John Yoo's emails from the summer of 2002, when he and other government attorneys prepared and finalized legal memoranda for the CIA that redefined torture and authorized interrogators to brutalize war on terror detainees.
The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the DOJ's web site, emails fall under FRA if they pertain to government business.
Last week, the DOJ's Office of Professional Responsibility (OPR) released a long-awaited report into the legal work former Office of Legal Counsel (OLC) attorneys Yoo and Jay Bybee did for the Bush administration on torture. Yoo currently works as a law professor at UC Berkeley and Bybee received a lifetime appointment as a federal judge on the Ninth Circuit Court of Appeals.
Legal opinions written by Yoo in August 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.
Waterboarding and some of the other interrogation techniques sanctioned by the Bush administration, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated and prosecuted as war crimes. However, Yoo - working closely with Bush administration officials - claimed that the techniques did not violate US criminal laws and international treaties forbidding torture.
Further, Yoo asserted that Bush's presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the war on terror.
But Yoo, the report concluded, was found to have "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice."
Bybee was found to have "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice." OPR investigators deemed this to be a violation of "professional standards" and recommended that Yoo and Bybee be referred to state bar associations where they could have had their law licenses revoked. Career prosecutor David Margolis, however, downgraded the criticism to “poor judgment," which means the DOJ now won't make the referral.
The voluminous report noted, however, that while OPR investigtors were initially provided us with a relatively small number of emails, files, and draft documents," it became "apparent, during the course of our review, that relevant documents were missing..."
OPR "requested and were given direct access to the email and computer records of REDACTED, Yoo, [Deputy Assistant Attorney General Patrick] Philbin, Bybee, and [fomer OLC head Jack] Goldsmith" during the course of the investigation into the creation of the torture memos. But OPR investigators said their probe was “hampered by the loss of Yoo's and Philbin's email records."
OPR investigators said they were told that most of “Yoo's email records" as well as "Philbin's email records from July 2002 through August 5, 2002 - the time period in which the Bybee Memo was completed and the Classified Bybee Memo ... was created" were deleted and "reportedly" not recoverable. The deleted emails also included other relevant documents the OPR needed to assist its investigation, according to the report.
It is unknown whether any steps were ever taken by DOJ to retrieve the emails before deeming them "unrecoverable." Curiously, the report says that although OPR investigators "were initially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them." The report does not provide further explanation.
In a letter sent Thursday to Jeanette Plante at the DOJ's Office of Records and Management Policy, Paul Wester, director of the Archives' modern record program, said, in accordance with federal rules governing the preservation of records, if the “DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report to" NARA.
Wester requested a response within 30 days. A DOJ spokesperson was unavailable for comment.
The destruction of Yoo's and Philbin's emails also caught the attention of watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had waged a years-long legal battle with the Bush administration over its destruction of tens of millions of emails and failed efforts to take steps to recover the documents and preserve others.
Melanie Sloan, CREW's executive director, said Thursday, “given the disappearance of millions of Bush White House emails, we shouldn't be surprised that crucial emails also disappeared from the Bush Justice Department."
“The question now is what is the Attorney General going to do about it?" she said.
Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department's and the Obama administration's unwillingness to further delve into the previous administration's alleged crimes.
She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA's destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.
"The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA," Sloan's letter to Holder said.
Indeed, the DOJ's web site said emails are federal records if it:
- Documents agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
- Provides comments on or objections to the language on drafts of policy statements or action plans
- Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities
The DOJ rules for preserving records also said "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."
Sloan, in her letter to Holder, said, "the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws ... Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they - or others seeking to hide the truth - may have broken the law by deleting their emails."
Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.
Under the terms of the agreement, 22 million previously "missing" emails covering 94 days will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney's Energy Task Force meetings.
The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney's energy task force meetings will not be known for years, as the documents will not be immediately available for public view.
The destruction of Yoo's and Philbin's email was one of the first issues raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.
"Have [the emails] disappeared? If they have, and if they have been destroyed, either the Yoo emails, the Philbin emails, will the [Justice Department] make ultimate determination whether the destruction was criminal, in violation of the criminal statutes, which seem fairly clear?" Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler.
Grindler testified that he still needs to gather information from the "information technology experts, including all of the questions of what occurred, what the policies are, and what the archive system is. And at that point I'll be in a position to evaluate whether anything additional needs to be done."
Grindler said the report does not "suggest there was anything nefarious" about the fact that Yoo and Philbin's emails were not turned over to OPR investigatiors and he noted that the report "does include a review of some of Mr. Yoo's emails."
But Leahy said the episode was cause for concern given that other Bush administration officials were found to have destroyed emails in violation of the Presidential Records Act during time frames that coincided with the lead up to the invasion of Iraq, the leak of Plame's covert status and other scandals that engulfed the Bush White House.
"All I'm saying is that the report doesn't have a complete lack of his e-mails," Grindler said. But as soon as I learn the facts regarding this, I will provide appropriate information back to this committee...If they are retrievable, I will direct [technical staff] to retrieve them."
After the hearing, CREW filed a Freedom of Information Act request with the Justice Department "seeking documents that would shed light on the destruction" of Yoo's and Philbin's emails.
Specifically, CREW wants "copies of record keeping guidance issued to staff of the Office of Legal Counsel (OLC) from January 2000 to the present concerning how electronic records, including email, are to be treated for purposes of federal record keeping laws."
CREW "also seeks records indicating, reflecting, or commenting on any problems with the storage or retention of emails of OLC staff, including but not limited to" Yoo and Philbin, "from January 2000 to July 2009."
In a blog post published last Sunday, Marcy Wheeler, who has spent the past week painstakingly dissecting the OPR report, wrote that emails OPR did obtain "provide a key piece of evidence that the White House was responsible for the way in which the Bybee One memo served as a blank check, as well as the pressure the White House put on the lawyers as they were drafting the memos."
"The emails put the White House squarely in the drafting process" of the torture memos, Wheeler wrote on her blog emptywheel. "But that’s all, with most emails from John Yoo and Patrick Philbin still disappeared. It sort of makes you all the more curious about what was in the Yoo and Philbin emails that got deleted, huh?"