The Growing Mystery of the Missing E-Mails

How big is the Justice Department's missing e-mail problem? That may be the key question arising from the disclosure—in last week's Office of Professional Responsibility (OPR) report—that the e-mails of Justice Department lawyers who crafted memos on torture and other controversial issues had mysteriously disappeared.

Gary Grindler, the acting deputy attorney general, told the Senate Judiciary Committee on Friday that the department has begun a review of the circumstances surrounding the deleted e-mails written by Jay Bybee, the former chief of the Office of Legal Counsel, and John Yoo, one of his deputies. (According to the OPR report, some e-mails of at least one other OLC lawyer at the time, Patrick Philbin, had also been deleted and could not be recovered.)

Pressed by Sen. Patrick Leahy about why the e-mails had not been preserved, Grindler noted that the OPR report (which disclosed the missing e-mails in a brief footnote) "does not suggest there was anything nefarious." Still, he said he had directed Justice officials to work with computer technicians "to determine what exactly was going on in terms of the archiving of these e-mails."

The issue could present a long-term headache for the department. If the failure to preserve the e-mails of Yoo and Bybee was the result of computer "archiving" problems, as Grindler suggests, "this definitely could mean there was a much larger, systemic problem," says Anne Weismann, the chief counsel to the Citizens for Responsibility and Ethics in Washington (CREW).

Weismann said her organization—which three years ago sued the Bush White House, demanding that it recover millions of missing e-mails—is now "definitely looking into filing a lawsuit" against the Justice Department over the same issue. (The case against the White House, filed jointly by CREW and the National Security Archives, led to a settlement last year in which computer technicians revealed they had managed to recover 22 million e-mails.)

As we reported yesterday, the National Archives has demanded an explanation from Justice about the missing e-mails in light of the Federal Records Act—a law that bars federal employees from destroying any records that reflect government business. E-mails that document substantive government work have long been considered "records" that must be retained, both by the Archives and Justice. Indeed, the Justice Department has even posted guidance on its Web site informing all employees that unless their office has "approved procedures for electronic retention of E-mail, you must print the E-mail message and file/store it" in accordance with DOJ policies.

So far, the Justice Department has said very little in response to questions about the e-mail controversy. It has not answered, for instance, whether the failure to archive and otherwise preserve e-mails on computer tapes was limited to the Office of Legal Counsel during the first few years after 9/11, or whether it was more extensive throughout the department. It also has failed to explain how OPR could investigate the conduct of Yoo and Bybee for five years—and not get to the bottom of why their e-mails were missing for a crucial period.

But if CREW files a lawsuit—or if Leahy and other members of Congress continue to press for an explanation—the Justice Department may have little choice but to come up with some better answers.