3-1-2010By Daphne Eviatar
Senior Associate, Law and Security
Cross-posted at Huffington Post.
The pressure is growing on the Justice Department to produce supposedly “deleted” e-mails that could reveal whether government lawyers during the Bush administration were instructed to devise legal justifications for torture.
These are, as I noted last week, most of John Yoo’s e-mails, and a chunk of those of his colleague Patrick Philbin at precisely the time that Philbin was involved in reviewing two of the controversial Office of Legal Counsel memos approving torture, stress positions, prolonged sleep deprivation and other abusive interrogation techniques. As the Office of Professional Responsibility pointed out in its final report on the lawyers’ ethical obligations, those e-mails were all oddly deleted and unretrievable
So far, Citizens for Responsibility and Ethics in Washington (CREW), the National Archives, Senator Patrick Leahy (D-Vt.), and The New York Times have called on DOJ to find and produce the e-mails or lauunch a criminal investigation if they were indeed destroyed.
Then on Monday, Rep. John Conyers (D-Mich.) took a different tack; he called on the the National Archives to produce the White House side of those missing e-mails, since those are presidential records that must be retained under the Presidential Records Act.
Over the weekend, John Yoo, while railing at the “incompetence” of the OPR, which was “obviously biased” and “selectively tried to persecute only a few officials” in the OLC (they should have gone after the whole Justice Department, apparently), denies that OPR didn’t have his e-mails and adds that in any event, the Justice Department’s e-mail system is unclassified and so couldn’t be used to discuss interrogation techniques that were “classified at the highest levels of secrecy.”
Of course, discussions between Yoo and the White House or CIA about the memos he was writing didn’t necessarily have to contain classified information in them for them to reveal whether senior officials were instructing Yoo to find a justification for breaking the law. In fact, many e-mails referenced in the report related to the memos were not classified, as Marcy Wheeler pointed out on Sunday.
Meanwhile, the National Security Administration, as it notes on its website, provides “security configuration guides” for government agencies to help them transmit classified material electronically. So whether it was through his DOJ e-mail or another government e-mail address, Yoo was almost certainly able to send classified material to his “clients” – the White House and the CIA — by e-mail.
There doesn’t appear to be any real question that Yoo was required to retain those e-mails. As CREW wrote in its letter, the Federal Records Act requires the preservation of government documents. Over the weekend, Jason Leopold pointed out on Truthout that the DOJ’s web site explains that an e-mail is probably a federal record that must be preserved 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; or Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities.” The DOJ rules also say that “the unlawful removal or destruction of federal records” can result in “criminal or civil penalties, fines and/or imprisonment.”
Even if Justice refuses to further investigate whether high-level officials in the former administration broke the law, it may feel some pressure to at least investigate whether a DOJ attorney broke the DOJ’s own rules – which may turn out to be an attempt to cover up some much more serious lawbreaking.