It’s Not Just the Emails DOJ Lost, It’s the Backup Documentation

We’ve been talking quite a bit about John Yoo and Patrick Philbin’s emails on the torture memos that OLC deleted: with a rebuttal of John Yoo’s claims there were no email, a report on the National Archives’ attempts to learn what happened, and a catalog of damning facts we learned from the few emails left over.

But it’s not just the emails that are missing. It’s also some of the backup documentation. Some of the documents that went into the production of the torture memos–and should have been reviewed by OPR over the course of its investigation–disappeared some time in the last 5 years.

As I reported last September, after some delay in a FOIA response, Acting head of OLC, David Barron confessed that OLC could not find all of the documents that it had first listed on a 2006 FOIA response.

The problem, as Barron explained in his declaration, seems to stem from three things: CIA, not OLC, did the original FOIA search in 2005 and at that time did not make a copy of the documents responsive to FOIA; for long periods OPR had the documents, lumped in with a bunch of other torture documents, so it could work on is investigation; the documents got shuttled around for other purposes, as well, including other investigations and one trip to the CIA for a 2007 update to the FOIA Vaughn Index. [Here’s the 2007 Vaughn Index and here’s the Vaughn Index that accompanied Barron’s declaration last September.]

And, somewhere along the way, at least 10 documents originally identified in 2005 as responsive to the FOIA got lost.

Poof!

The 10 Missing Documents

Here’s a list of the short descriptions of what disappeared:

  • Document 6, 07/25/2002, 46 [or 60 or 59] page Top Secret [or Secret] memo providing legal advice
  • Document 20, 09/12/2003, 1 page Top Secret memo requesting legal advice
  • Document 47, 07/07/2004, 1 page Top Secret memo providing legal advice
  • Document 77, 08/16/2004, 2 page Top Secret memo providing legal advice
  • Document 142, undated 2 page Top Secret memo requesting legal advice
  • Document 155, undated 3 page Top Secret draft memo with attached handwritten notes requesting legal advice
  • Document 172, undated 5 page Top Secret memo requesting legal advice
  • Document 175, undated 6 page Top Secret draft memo providing legal advice
  • Document 177, undated 10 page Top Secret draft memo providing legal advice
  • Document 181, undated 127 page Top Secret draft memo providing legal advice

Why did CIA do the FOIA responses?

Now, before I get into why this is troubling in terms of the OPR Report, let me just challenge a claim Barron made in his declaration. He explained that CIA, rather than OLC, had done the first and second FOIA searches this way:

CIA attorneys were initially given access to the OLC Sensitive Compartmented Information Facility (“SCIF”) in 2005 to search for documents responsive to the FOIA request at issue in this litigation. CIA attorneys conducted the search because no OLC attorneys assigned at the time to the processing of FOIA requests had the clearances needed to access and review the documents.

It’s not entirely clear when CIA would have been rifling through OLC’s SCIF drawers in 2005 (and Barron apparently doesn’t feel like telling us). But it would have come after Judge Alvin Hellerstein ordered the CIA to respond to the FOIA on February 2, 2005 (they had been refusing to respond to his order to do so from the previous fall). And they would have done it over the next year and a half. In any case, it would have happened after Daniel Levin wrote his unclassified torture memo, about which the OPR Report explains,

Virtually all of OLC’s attorneys and deputies were included in the review process,

And it would have happened during or after the drafting of the Bradbury memos, about which the OPR Report explains,

Bradbury circulated drafts of his memoranda widely within the Department.

Granted, the OPR Report doesn’t say the Bradbury Memos were circulated widely within OLC, but when they had an incentive to make the claim, DOJ later claimed that the torture memos, which would have been the same compartment as all the FOIA documents, were widely circulated. It seems unlikely that Levin’s memo was reviewed by “virtually all of OLC’s attorneys,” but that the following year they couldn’t find a single OLC lawyer to put together a FOIA response.

And what seems even more curious is that rather than invite CIA to OLC’s SCIF to do the updated FOIA response in 2007–at a time when the documents were under investigation–DOJ would instead send all the documents over to CIA for them to do it.

In 2007, the documents were recalled from OPR by OLC so that they could be sent to the CIA for processing and for purposes of updated the unclassified Vaughn Index submitted in this matter.

It’s sort of funny that DOJ took fewer cautions with these documents after they were actively under investigation than they did beforehand. Here, DOJ seems to have said to the CIA, see if you can’t make some of these documents accidentally blow into the Potomac on your way back to DOJ…

Three Troubling Documents

Now, it’s hard to tell what disappeared, since we don’t actually get to see either the documents that disappeared or those the DOJ thinks might be close matches. But three of the documents, in particular, trouble me.

Document 6, 07/25/2002, 46 [or 60 or 59] page Top Secret [or Secret] memo providing legal advice

Here’s the longer description of this document submitted in the 2007 FOIA response:

Document No. 6 is a 60-page document dated 25 July 2002 that consists of a 3-page memorandum and six attachments of 2 pages, 7 pages, 10 pages, 13 pages, 13 pages, and 12 pages, respectively. It is classified SECRET.

The memorandum and attachments contain confidential client communications from the CIA on a matter in which it requested legal advice from OLC.

Aside from the fact that DOJ has said, at different times, this packet of information was 46, 60, and 59-pages long (and that the same FOIA claims it is classified both Top Secret and Secret), the questions about this document alarm me because I’m fairly certain this is the packet of JPRA information sent OLC in the last days of drafting of the first torture documents. It’s going to take me a full post to explain the many reasons questions about this document’s provenance is problematic–tune in next post for the next installment of disappearing evidence!

Document 77, 08/16/2004, 2 page Top Secret memo providing legal advice

Here’s the longer description of this document from 2007:

Document No. 77 is a 2-page memorandum dated 16 August 2004 from OLC to the CIA. It is classified TOP SECRET.
The memorandum provides OLC’s legal advice on a matter of interest to the CIA. It also contains confidential client communications from the CIA.

This document comes from a period in 2004 when OLC was approving each use of torture and there were at least three detainees who were undergoing torture. Concerns about at least one of these detainees contributed to the urgency, in 2005, behind the Bradbury documentation. So it’s possible that this letter is a torture approval that CIA wouldn’t want OPR to know about.

Document 155, undated 3 page Top Secret draft memo with attached handwritten notes requesting legal advice

Here’s the longer description:

Document No. 155 is a 3-page undated draft memorandum with attached handwritten notes from the CIA to OLC. It is classified TOP SECRET.

The draft memorandum and notes contains confidential client communications from the CIA to OLC on a matter in which the CIA requested legal advice from OLC.

Now, given the number of undated memos in this FOIA, any guess we make about these docuuments would be a wildarsed one. So while I can’t say what this document is, mostly I include this document because of my concern that something like it remains in dispute. The OPR Report notes that John Bellinger believes CIA brought a draft advance declination–a Get Out of Jail Free Card–to DOJ in 2002; John Rizzo disputes that.

Bellinger told us that he received a telephone call from CIA attorneys in the Spring of 2002 informing him that Abu Zubaydah had been captured and the CIA wanted to use an aggressive interrogation plan to question him. Bellinger said the CIA wanted a Department of Justice criminal declination in advance of the interrogation because of concerns about the application of criminal laws, in particular the torture statute, to their actions. Bellinger said that he arranged a meeting between Department attorneys Yoo and Chertoff and the CIA, and that he thought the CIA attorneys may have even brought a draft declination memorandum to the meeting. However, Rizzo disputed that the CIA had ever drafted a proposed declination memorandum.

Again, I don’t really have any reason to believe that Document 155 really is the draft advance declination that Bellinger says existed but Rizzo says does not. But if Bellinger is right–if the CIA really did put down in writing that it wanted DOJ to give it a Get Out of Jail Free card before it started torturing anyone–the document would be critical to OPR’s investigation not just for its very existence, but for the choice of words CIA chose to use in it.

But given the way documents had a way of disappearing between OLC and OPR and CIA, we can never say definitively whether it once existed or not.

Missing Torture Documents Timeline

2005: CIA attorneys given access to OLC SCIF to do FOIA response

May 15, 2006: Vaughn Index reflecting CIA search submitted

Early 2007: A collection of documents, including responsive documents, transported to OPR’s SCIF

2007: OLC recalled documents and sent them to CIA to update the Vaughn Index

June 7, 2007: Updated Vaughn Index released

July 2007: Documents returned to OLC SCIF

Shortly after July 2007: Set of documents transferred to OPR

July 2007 to March 2009: Documents at OPR, but certain documents recalled on several occasions

Late 2007 or early 2008: An OLC lawyer attempted to reconstruct the Vaughn Index, identifying 150 of 181 documents

March 2009: OPR returned the documents

June to September 2009: OLC, SDNY and CIA lawyers search try to recreate the Vaughn Index/find the documents

June to July 2009: OLC attorney attempts to reconstruct the Vaughn Index

July 19, 2009: Two CIA attorneys attempt to help OLC reconstruct the Vaughn Index

July 20, 2009: OPR searches its SCIF, finds no documents

July 2009: CIA searches its Office of General Counsel files

August 31, 2009 to September 7, 2009: Three OLC attorneys search SCIF

September 21, 2009: Barron admits documents have gone missing

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

39 replies
  1. Leen says:

    I thought Yoo had said that those “silly” missing emails were not classified. Why do they all say TOP SECRET?

  2. klynn says:

    Sensitive Compartmented Information Facility (“SCIF”)

    Are email addresses established for this SCI?

  3. bobschacht says:

    EW,
    Thanks for another amazing piece of work. Legions of investigators will be in your debt. Maybe Durham, too. Not to mention us here at the Wheel House.

    Bob in AZ

  4. MadDog says:

    …It’s sort of funny that DOJ took fewer cautions with these documents after they were actively under investigation than they did beforehand. Here, DOJ seems to have said to the CIA, see if you can’t make some of these documents accidentally blow into the Potomac on your way back to DOJ…

    I can imagine how the conversation goes between the DOJ and CIA folks:

    Don’t put no covers on those boxes, and then jest ride with the top down.

    But it’s not a convertible.

    Well, then jest leave the car doors open.

    But then the car won’t fit through the door of the DOJ garage.

    Well, then jest roll the windows down.

    But they only roll down a little.

    Dagnabbit! We’re running out of options. How about this? Put ’em in the trunk and get in there with ’em. When you’re out on the freeway, open the trunk and then start throwing the stuff away.

    But I’m afraid of the dark…

  5. klynn says:

    Regarding Yoo’s claims IRT DOJ and classification:

    “The DOJ…is the third largest classifier of information in the excutive branch, following the DoD and CIA, based on information that these agancies report to ISOO. Furthermore, one component within DOJ, the FBI, makes up 98% of the departments total classification decisions. In July 2004, ISOO made 10 recommendations to DOJ to correct deficiencies in its policies and procedures for classifying and declassifying national security information.”

    (PDF pg 7-8 in the GAO 2006 Managing Sensitive Information Study)

  6. klynn says:

    More regarding his bull:

    DOJ Policy

    When necessary, DOJ employees store, process, and transmit classified information using portable computers. Employees may also process sensitive but unclassified information, send and receive e mail, and obtain research data from the Internet on portable computers. Currently, employees who process both classified and unclassified information must utilize two separate portable computers in order to accomplish their assignments. Carrying two portable computers is necessary because the current DOJ policy does not explicitly authorize the use of two hard drives, one for classified information and one for unclassified information, in a single portable computer.

    DOJ Order 2640.2E, titled Information Technology Security, establishes uniform policy, responsibilities, and authorities for the implementation and protection of DOJ’s IT systems that store, process, or transmit classified and unclassified information. The Assistant Director of SEPS and the Deputy Chief Information Officer described the distinction between the responsibilities of the two offices as the Chief Information Officer being responsible for security of classified and unclassified IT systems and SEPS being responsible for security of the classified information.

    The Department’s Chief Information Officer issued 17 Information Technology Security Standards between December 4, 2003, and January 30, 2004, for DOJ systems that process classified and unclassified information. In addition, an 18th standard was issued on August 19, 2004, titled Information Technology Security Standard, Management Controls, 1.6 Classified Laptop and Standalone Computers Security Policy (Standard 1.6). Standard 1.6 established uniform information technology security management controls for laptop (portable) and standalone computers storing, processing, or transmitting National Security Information in the DOJ.9 All IT systems in the DOJ that process classified information must be certified and accredited in accordance with standards established by the Department’s Chief Information Officer before the system can be used.

    Policy issued by SEPS, titled Security Program Operating Manual (SPOM), revised November 5, 2004, provides guidance for the safeguarding of classified information. The SPOM applies to classified information, security controls, security clearance requirements for employees, and the facilities authorized to store the information.

    Classified National Security Information cannot be processed in public areas or while being transported. According to the SPOM and DCID 6/9, such information can be processed in only four specific types of facilities — a Sensitive Compartmented Information Facility (SCIF), a Temporary Secure Working Area, an Open Storage Area, or a Restricted Area.

  7. fatster says:

    O/T Very little details available in the article, but the Supremes sure dusted their hands of this it seems.

    Court dismisses Uighurs’ appeal in detention case

    Supreme Court dismisses appeal of Chinese Muslims at Guantanamo Bay, says other options exist

    LINK.

    • Mary says:

      Nifty how AP glosses over the fact that the reason only one of the brothers (A) had been cleared for release is bc his brother(B) had been tortured into insanity. IIRC, the article is wrong in that A DID have a place to go earlier, but refused to leave his tortured to insanity brother B, no doubt feeling very guilty that B, who had been tortured into insanity, was picked up when B went looking for A.

      Just like Bush released Padilla to civilian courts in the nick of time, to avoid review, so Obama has suddenly found a home for even the “uncleared” brother in the nick fo time. It does sound like the opinion may have some interesting bits in advance of the Arar case.

  8. DWBartoo says:

    How convenient, this absence of evidence.

    Coincidentally,”evidence of absence”, once upon a time, was held to be “proof” of “something”.

    Now … are there any questions?

    DW

  9. klynn says:

    Isn’t anything that is a SCI clearance a clearance above “TOP SECRET”?

    I thought I remembered reading something about that.

    So, is there a whole “other” email system just for SCI type communications?

    I am not a techie.

    • Citizen92 says:

      Google “JWICS” and/or “SIPRNet”

      This will lead you in the general direction.

      [Someone should FOIA DISA (Defense Information Systems Agency) for what records they may have].

  10. Mary says:

    I don’t guess there’s any way to know if the CIA lawyers turned loose on the docs in 2005 in the OLC SCIF were the same CT lawyers who refused to cooperate with the OPR in the investigation?

  11. klynn says:

    Just so that we are clear:

    In United States security and intelligence parlance, a Sensitive Compartmented Information Facility (SCIF; pronounced “skiff”) is an enclosed area within a building that is used to process Sensitive Compartmented Information (SCI) level classified information. SCI is classified information concerning or derived from intelligence sources, methods, or analytical processes, which is required to be handled within formal access control systems established by the Director of Central Intelligence (DCI). Some entire buildings are SCIFs where all but the front foyer is secure. Access to SCIFs is limited, and all of the activity and conversation inside is presumed restricted from public disclosure. A SCIF can also be located in a mobile configuration and can be deployed using air, ground or maritime resources.

    The physical construction, access control, and alarming of the facility is defined under Director of Central Intelligence Directive (DCID) 6/9, and was previously specified through DCID 1/21. The computers running within this facility must operate under rules set forth in DCID 6/3. Computers and telecommunication equipment within must fall within the TEMPEST emanations specification.

    SCI is usually only briefed, discussed, and stored in an accredited SCIF. Moreover, programs handled under the SCI paradigm are normally not publicly acknowledged by the U.S. government.

    There are SCIFs in the United States Capitol in which members of Congress are briefed on military secrets. In U.S. nuclear labs, computers that store weapons data are housed inside SCIFs. Components of the United States Department of Homeland Security, such as the new National Biodefense Analysis and Countermeasures Center (NBACC) at Fort Detrick, Maryland, have or will have SCIFs.

    (my bold)

    So, I guess my understanding is correct. They can run an entire SCI communication system (including email) out of sight of FOIA’s.

    • MadDog says:

      And in response:

      Council holds hearing on removing Gen. Hayden tribute

      West View resident Harry Hayden defended his brother, retired Air Force Gen. and CIA director Michael V. Hayden, this morning at a City Council hearing on a proposal to remove a decorative nameplate bearing the general’s name on North Shore Drive.

      Mr. Hayden said accusations that his brother had illegally wiretapped Americans and condoned torture of terrorism suspects were “wildly inaccurate.” Council held the hearing because about 60 residents signed a petition requesting that the decorative nameplate be removed, saying he was responsible for some of the most controversial aspects of former President George W. Bush’s antiterrorism campaign…

  12. rosalind says:

    ot: a CA official to make Margolis proud –

    Three California officials who oversee billions of dollars in Medi-Cal prescription drug spending have failed to disclose free flights, hotel rooms and meals paid for by nonprofit groups funded by drugmakers, records and interviews show…

    Norman Williams confirmed that each state official who accepted the trips had direct roles in medication spending and policy. Yet he said his agency reviewed its conflict-of-interest policy and determined that none of the officials had violated it, noting that the trips were funded by nonprofit groups and not by companies seeking state business.

    (emphasis mine)

  13. Palli says:

    Maybe Mrs.Used-To-Misdirect-the-NEH told her husband they had to have good reason to just make stuff up as an historical record.

  14. JohnLopresti says:

    I wonder if part of an olc Vaughn index is an actual photographic image of the document set in its entirety, what libraries used to call microfilch microfiche. The Barron declaration of the intermingling of set documents with miscellany in same bin does not seem to describe any such imaging or bitmap based scanning, but looks like a disorganized method of storage, especially when the Vaugh identifiers specify a few as letterheadless unsigned undated documents. Imaging systems were in widespread use in government long before 2005-2009. Remember the dawn of html and a rudimentary program called Frame, which was popular in the bureaucracy as well as numerous oversize industries. There were early versions of Acrobat, and a utility known as Trapeze from the same firm, which in 2005 certainly could have scanned 10,000s of pages into digital form quickly.

    • Mary says:

      Damn – I went through all the get registered bit only to miss out.

      I really wanted to chat with him, too.

    • pdaly says:

      It’s too bad Yoo stayed only 30 seconds (I mean minutes).

      Yoo excerpt:

      Of course, none of this was quoted or described by OPR in their quest to distort the evidence and the law to reach their desired result.

      Oh, the irony. He’s a man of double standards.

  15. Mary says:

    more OT
    In mid-Feb, an existing torture case with a pending complaint was amended.

    http://www.law.northwestern.edu/macarthur/documents/police/2_14_07_PressRelease.pdf

    That’s one of the Illinois/Police Chief torture cases, not a Yoo/DOJ torture case, but it’s interesting bc it adds two Chief Execs – Mayors Daley and Byrne – to a “lawsuit alleging they conspired with State’s Attorney Richard Devine, Area 2 Commander Jon Burge, and numerous of his men to cover-up systematic torture of African-American suspects”

    The non-prosecution decisions get a specific mention in the press release:

    Evidence shows that Burge and his subordinates tortured more than 100 African- American suspects during a 20-year period, in an effort to compel defendants into falsely confessing to crimes. A special prosecutor report released in 2006 also found that torture occurred at Area 2 under Burge during the 70s and 80s.
    Cannon’s amended lawsuit alleges that Daley and Devine were complicit in a concerted cover-up of the torture by refusing to prosecute Burge for torturing suspects, withholding evidence of this torture, prosecuting defendants who had been victimized by the ruthless police techniques, by making false statements to the media, and by giving false and incomplete statements to the Special Prosecutors.

    The case has been a blueprint for what is going on now.

    Fake investigations by the Exec branch of itself between 72 and 91 did nothing. Finally, in 2006, the court appoints a special prosecutor and that investigation “found that Burge and his men used torture techniques that included electro-shocks to the genitals, burning skin on radiators and mock suffocations with plastic bags.” Yeah rah? Or not so much. “However, the statute of limitations prevented prosecution.”

    Now, Fitzgerald has indicted a man who is likely to die before any trial and there definitely won’t be exposures involving the Mayoral and State AG’s office involvement – and all that WITH a whole prosecutorial mechanism outside of the state system that could have stepped in at any time and hasn’t until now, in a very muted fashion. With DOJ – there is no separate prosecutorial mechanism. And FOP is footing Burge’s legal bill. Now that makes me think of something – something about some institution footing the legal bills of another guy accused of torture conspiracies . ..

  16. burnt says:

    This is not completely off topic.

    Down in the Rizzo thread JohnLopresti seemed to be wishing aloud for a searchable version of the OIG report from May of 2008. The file “oig_detainees052008searchable.pdf” is here and since it is a new month I get a fresh 200 gigs of downloadable goodness.

    Knock yourselves out.

    • Mary says:

      You don’t know how much you are appreciated. Or maybe you do and have an “I am one of the lesser dieties” t-shirt all your own, but just in case you don’t …

  17. JohnLopresti says:

    burnt, Thx. I reference that early report often in these discussions, and its lexis is subtle.

  18. pdaly says:

    OT: Full body scanners arrived this morning at Logan Airport in Boston.
    Chicago’s O’Hare is next on the list.

    Travelers not willing to be scanned can opt for the manual pat down.

    Great.

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