Exclusive: Archives Demands DOJ Explain Missing E-Mails

The National Archives is pressing the Justice Department to investigate the "possible unauthorized destruction of e-mail and other records" within the Justice Department's Office of Legal Counsel during a crucial time period, when the office's lawyers wrote hotly disputed memos about torture, Guantánamo, and warrantless wiretapping.

Paul M. Wester, director of the Archives' modern records program, wrote Justice on Wednesday asking for an explanation for a passage in the department's just-released Office of Professional Responsibility (OPR) report, which stated that e-mails by John Yoo, Jay Bybee, and another lawyer who worked on two torture memos "had been deleted and were not recoverable," according to a copy of the letter obtained by Declassified.

Citing National Archives rules requiring agencies to preserve federal records, Wester asked Jeanette Plante, the DOJ director of the Office of Records Management Policy, to report back to him within 30 days, saying, "If DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report" to the Archives.

A Justice spokeswoman said the department was "reviewing the letter" and declined further comment. The department is seeking to determine what department policies and procedures were in place at the time to archive or otherwise preserve employee e-mails, according to a source familiar with the department's review who asked not to be identified because it is ongoing.

The Federal Records Act states that "no federal records may be destroyed" by agencies without first getting approval from the Archives to dispose of the material. E-mails have long been considered "records" if they involve substantive government business. The Archives, which has responsibility for maintaining a permanent archive of government records, has imposed rules on federal agencies, requiring them to take steps to preserve such material—either by archiving the e-mails on computer tapes or by printing them out and preserving them.

Under those same rules, federal agencies "must report promptly" to the Archives "any unlawful or accidental removal" of federal records.

But Susan Cooper, a spokeswoman for the Archives, says the first time Archive officials became aware of the missing e-mails is when the OPR report was released last Friday night.

"We want some answers," says Cooper. "Why were they destroyed—and why weren't we notified?" Cooper emphasized that the Archives has no evidence there was any willful destruction.

Archives officials aren't the only ones asking such questions. A public-interest group, the Citizens for Responsibility and Ethics in Washington (CREW), wrote Attorney General Eric Holder a letter on Thursday asking him to investigate the missing e-mails. The missing e-mails are also expected to be a prime topic on Friday when the Senate Judiciary Committee holds a hearing on the OPR report.

Democratic senators expect to press a top Justice official, acting Deputy Attorney General Gary Grindler, on why a department official, David Margolis, overruled the recommendations of OPR that Yoo and Bybee be referred to their state bar associations for "professional misconduct" in the crafting of two 2002 memos approving waterboarding and other "enhanced" interrogation techniques by the CIA. But senators also plan to press Grindler about the missing e-mails, according to a committee staffer.

Yoo and a lawyer for Bybee did not respond to requests for comment this week abou the OPR's reference to their deleted e-mails. (Nor did Patrick Philbin, another former OLC lawyer whose e-mails were deleted, according to the report.) But the fact that they are missing does not necessarily mean there was a conscious effort to destroy them, according to some former department officials. Another former OLC lawyer—who asked not to be identified—said that there was no clearly articulated policy about preserving e-mails during that time period. If OLC and other department e-mails weren't being routinely preserved on computer tapes, the Bush-era Justice Department could find itself in the same predicament as the White House did under under President Bush. In 2007 two public-interest groups—the National Security Archives and CREW—sued the White House for failing to preserve e-mails after federal prosecutor Patrick Fitzgerald disclosed that some e-mails dating from October 2003 that he had sought as part of the investigation into the leak of CIA operative Valerie Plame's identity had not been preserved. As part of a settlement of the lawsuit last year, it was disclosed that White House computer technicians had found 22 million White House e-mails that had previously been missing because they had not been properly archived.

But the discovery of a similar problem at the Justice Department is especially ironic because it is the Justice Department itself that is ultimately responsible for prosecuting certain violations of the Federal Records Act. There are no criminal penalties for failing to preserve government records, although willful destruction can be criminally prosecuted under other laws, barring the destruction of government property. However, Archives does have the authority to make referrals to the Justice Department when it determines that former government officials have removed federal records when they leave office. In that case, Justice can seek to impose civil fines on the individuals.