Those Vanishing Emails!

By William Fisher

The Justice Department investigation into whether the authors of the Bush-era “torture memos” were guilty of professional misconduct did not have full access to the emails used by those lawyers and by other key figures in the investigation, including former Attorney General John Ashcroft and former counsel to the Vice President David Addington.

The missing emails came to light during a hearing of the Senate Judiciary Committee TODAY (Friday). Committee chairman Patrick Leahy, a Democrat from Vermont, described the vanishing emails as “suspicious.”

He urged the sole witness before the committee, Acting Deputy Attorney General Gary G. Grindler, to investigate further to determine who deleted the emails and whether they could be recovered.

The email issue recalled the 2007 investigation into the firing of eight U.S. Attorneys during the administration of President George W. Bush, and whether the White House pressured the Justice Department to cover up the details of the firings. Administration officials insisted that millions of emails from senior Bush figures including political advisor Karl Rove were irretrievably missing. The emails were later recovered. The disclosures were important factors in the resignation of former Attorney General Alberto Gonzales.

The Justice Department’s investigation into the torture memos, conducted by the DOJ’s Office of Professional Responsibility (OPR), was highly critical of its authors but concluded that they were guilty of poor judgment but not professional misconduct meriting referral to state legal organizations for possible disbarment.

The authors of the memos were Jay Bybee, who was Deputy Assistant Attorney General, and his assistant, John Yoo. Bybee is now a federal judge and Yoo is a law professor.

Bybee and Yoo worked in the DOJ’s Office of Legal Counsel (OLC). OLC is one of the most important offices within the Department of Justice. It is to this office that the president directs questions about the legality of actions his administration plans to take or policies it intends to adopt.

Human Rights First, a legal advocacy group that has closely followed this issue, is urging members of the Senate Judiciary Committee to address questions that remain unanswered following the release of Department of Justice’s Office of Professional Responsibility (OPR) report.

HRF called the conduct of Bybee and Yoo “unethical and unprofessional.”

The organization noted that the Judiciary Committee hearing “should lay the groundwork for further investigation and address the need to empanel a non-partisan commission to conduct a comprehensive review of these policies.”

Daphne Eviatar, a Human Rights First attorney who monitored the Senate hearing, told IPS she was "disappointed" that "there was no indication that DOJ has any intention of following up on the evidence revealed in the report indicating that the Office of Legal Counsel (OLC) was pressured by the White House to create legal justifications for illegal techniques that the administration had already decided to use. And if that's true, then we're talking about a criminal conspiracy, which the department is obligated to investigate further."

She added, “I was disappointed to hear that the Justice Department's attitude towards the matter was that it's now over.”

Leahy’s call for a further investigation drew strong objections from the Committee’s ranking Republican member, Senator Jeff Sessions of Alabama and another Republican member, Senator John Cornyn of Texas. Both strongly defended the actions taken by the Bush Administration following the terrorist attacks of September 11th 2001 as being necessary to protect U.S. national security.

HRF said the OPR report “highlights the lack of independent judgment and perverse legal reasoning that shaped the ‘torture memos’ and underscores the need for an independent review of how torture and other abuse of prisoners were authorized after 9/11. It provides the clearest picture to date of a flawed process by which the Justice Department’s Office of Legal Counsel (OLC), which is supposed to render independent legal advice, was instead subverted to provide conclusions justifying detainee abuse that principals within the Bush administration wanted to hear.”

The organization said the report also highlights in detail the flawed legal analysis by the three principal authors of the legal memoranda who gave a green light to the use of torture techniques documented in the CIA Inspector General’s report made public in August.

It sharply criticized the quality of the legal work in the memoranda, concluding that “of the lawyers who wrote these memos, Yoo committed intentional professional misconduct and Bybee acted in reckless disregard of his obligation to provide thorough, objective and candid legal advice.”

“Although the Associate Deputy Attorney General declined to adopt this opinion, choosing instead to characterize the lawyers’ work as an exercise of ‘poor judgment’, the fact remains that the individuals who investigated and analyzed the evidence found that Yoo’s misconduct was ‘intentional’ and that Bybee’s was ‘reckless.’ That calls into question the good faith of both of these lawyers, and demands further investigation,” HRF charged.

Following his earlier review of the OPR report, as well as the May 2004 CIA Inspector General’s report that detailed appalling abuses committed against prisoners in the CIA’s interrogation program, Attorney General Eric Holder announced in August 2009 the appointment of a prosecutor to conduct a preliminary review into only those prisoner abuses that exceeded the bounds of what was deemed permissible in the flawed OLC “torture memos.”

“The United States, to its credit, has a strong record of criticizing arbitrary detention and detainee abuse in other countries. In order to restore its credibility and leadership on human rights, the United States must engage in a full accounting of how policies of cruelty were authorized. A thorough and public examination of the past is vital in order to guard against future authorization of abuse in the name of national security,” Massimino concluded.

Other human rights and civil liberties groups took similar positions. “Laura W. Murphy, Director of the Washington legislative office of the American Civil Liberties Union (ACLU) said, “It is critical today that senators make clear that, given the information in the OPR report and the wealth of other evidence in the public domain, the Justice Department’s criminal investigation into the torture program must be broad enough to include those who authorized and legally sanctioned these shameful acts.”