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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 sideof those missing e-mails, since those are presidential records that must be retained under the Presidential Records Act.

Over the weekend, John Yoo, while railingat 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 Truthoutthat 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.

Originally posted to Daphne Eviatar Human Rights 1st on Tue Mar 02, 2010 at 10:02 AM PST.

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Comment Preferences

  •  White House email tampering impossible to track (7+ / 0-)
    This article claims "Even more troubling, due to a lack of redundancy and proper access controls, anyone with access to the White House servers could have tampered with or deleted the e-mails in the archives. And without adequate logging facilities, there might be no way to determine who might have tampered with the files or what might have been changed." And its known that the Bushites used an illegal Blackberry account for messages that they did not want to be archived. So good luck on finding the smoking gun. Its often said that there is no way to keep secrets in Washington but if you make everyone who is privy to the plot criminally liable then secrecy is more secure. The Bush administration was so full of criminally liable perps we may never know the full extent of the crimes committed.

    Health is the first requisite after morality - T. Jefferson

    by OHdog on Tue Mar 02, 2010 at 10:22:39 AM PST

    •  as I've always insisted (8+ / 0-)

      the mere act of using a non-secure, extragovernmental computer system for official government communications has got to violate some national security laws, especially after 9/11.  And post 9/11 hyper vigilance makes it completely unbelievable that the White House servers were so vulnerable.

      The stench of the "missing" emails case is so strong that Archibald Cox can smell it from his grave.

    •  So put them all in jail (3+ / 0-)

      Seriously.  If everyone had a duty to preserve the records, then everyone had a duty to maintain security, and anyone who disregarded security is breaking the rules/code/law.

      Maybe we don't get THE ONE who pressed the delete button, but if they're all going to jail, I'll bet some suddenly come up with reasons why the other guy actually is more responsible than they are, and the whole coverup starts to unravel.

      And no, I don't want a pony - stupid things can't sit on my lap.  Give me another Basset Hound.

  •  It might be worth keeping in mind (3+ / 0-)

    that most cover-ups are probably attempts to hide errors and mistakes, rather than crimes.  But, covering up is a crime because, if errors can't be discovered and fixed, then the nation is at risk.  Never mind that our resources continue to be wasted.
    We organize governments to avoid failure.  Mistakes are not failure.  But, uncorrected mistakes can lead to failure.

    by hannah on Tue Mar 02, 2010 at 10:27:37 AM PST

    •  Something done in error once (0+ / 0-)

      can be done with intent later on.

      Hoping and praying that the empty chairs and empty tables in Iran when all is said and done are as few as possible.

      by Cassandra Waites on Tue Mar 02, 2010 at 12:20:34 PM PST

      [ Parent ]

    •  I'm not sure this was by mistake (0+ / 0-)

      There's stuff we do know about the white house using separate email accounts, etc. It seems that in itself is a violation of the law, but nobody has the balls to call them on it. Hope that is changing.

      I'm sure we'll see some right-wingers accuse the current white house of similar chicanery, because they always project their own modus operandi on the opposite party!

      In a democracy, everyone is a politician. ~ Ehren Watada

      by Lefty Mama on Tue Mar 02, 2010 at 01:12:02 PM PST

      [ Parent ]

      •  The Freedom of Information Act has (1+ / 0-)
        Recommended by:
        Lefty Mama

        been a thornier issue for autocrats than any of the civil rights achievements.  That's because as long as the citizenry can be kept in the dark about what's being done in their name, they can't know what they're voting for and against.  So, personalities are all they can go by.

        That public records have long been used to advantage some people and disadvantage others has not been generally known.  The kerfuffle over who gets to have a marriage recorded and who not is spreading the word.  And some of the resistance to making the records more inclusive is very likely based on the realization that some privilege is going to be reduced.  

        Knowledge is power.  Keeping secrets is key.

        by hannah on Wed Mar 03, 2010 at 03:49:37 AM PST

        [ Parent ]

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