OLC Identified 31 Missing Documents During Period Leading Up to Torture Tape Investigation

As I reported on Monday, DOJ lost not only John Yoo and Patrick Philbin’s emails from the period when they were writing the Bybee Memos. It also lost at least 10 documents on torture, a number of them that went into the development of the torture memos.

We first learned these documents had disappeared from a declaration that David Barron, Acting head of OLC, submitted in response to an ACLU FOIA last September. In it, he described the six month effort OLC made last year to recreate the original Vaughn document first created in 2005. With a lot of searching last year, OLC was able to identify 171 documents that might be the documents referenced in the original Vaughn Index.

But OLC appears to have first discovered the problem before last year. Barron’s declaration describes one OLC lawyer attempting–but failing–to identify all the documents in the Vaughn index during late December 2007 or early January 2008. At that time, the OLC lawyer was only able to identify 150 of the 181 documents listed in the Vaughn index.

On at least one occasion in late 2007 or early 2008, when the documents were recalled by OLC from OPR for purposes of another matter, an OLC attorney made significant efforts to recompile the 181 documents listed on the original Vaughn index based on the descriptions of the documents in that index. The attorney made tentative identifications of approximately 150 of the 181 documents and marked the original documents with pencil numbers corresponding to the Vaughn index in the lower left-hand corner of each of those 150 documents.

It’s likely, but not certain, that these documents were recalled as part of DOJ’s review of whether it should criminally investigate the torture tape destruction (news of the tape destruction broke December 6 and Mukasey announced the investigation on January 2). And whether or not that’s why they recalled these documents, the OLC lawyer who tried to recreate the Vaughn index had to have been aware that CIA had destroyed evidence of its torture program.

And yet, according to Barron’s declaration, no one made any attempt to look for the 31 documents that OLC lawyer had not been able to find for more than another year.

That’s a remarkably lax attitude regarding documents potentially disappearing from a SCIF.

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.

55 replies
  1. jdmckay0 says:

    That’s a remarkably lax attitude regarding documents potentially disappearing from a SCIF.

    Got’a admire the consistent perpetuity of “lax attitudes”!!!

    Brings to mind MP’s Ministry-of-Redundant-Redundancy.

    With a bit more practice, they could make “lax attitude” (laxitude?) into an immutable principle.

  2. BoxTurtle says:

    Documents just don’t disappear from a scif. ObamaCo knows exactly what happened to those records, they simply prefer not to discuss it.

    Boxturtle (Repeating myself, I know)

  3. bobschacht says:

    Ah, the whiff of obstruction of justice in the morning!
    Thanks, EW, for highlighting this. It deserves to be spotlighted. I’m wondering what category of journalists to spotlight it to:
    * Justice and legal beagles?
    * Investigative reporters?
    When you’re limited to 10, choices must be made….

    Bob in AZ

  4. scribe says:

    EW: Like I told you a good year ago, when the issue of documents missing from the OLC SCIF first came out, during the Hellerstein FOIA case, my first sense was that they were intentionally destroyed.

    And, as I told you then, I ran the facts of how they disappeared – reciting the story “clean”, as it were, i.e., without naming names or offices – by a then-acquaintance whose work involved near-daily working in and around SCIFs. And you’ll recall the acquaintance’s instantaneous reaction I communicated to you then: “someone destroyed them intentionally”, and the acquaintance’s further shocked reaction when I removed the “clean” and told acquaintance it was the OLC doing the losing/destruction: “Holy shit. You gotta be kidding.”.

    I just wish we’d get over the pussyfooting around what seems by now a pretty inescapable fact and call it for what it is: either the CIA, the denizens of the OLC, or the War Council destroyed the documents deliberately, as a part of an effort to avoid liability later.

    • Leen says:

      “it is: either the CIA, the denizens of the OLC, or the War Council destroyed the documents deliberately, as a part of an effort to avoid liability later.”

      Setting such good examples for the peasants. Such respect for the law. Trickles down.

        • bmaz says:

          You mean along with all the other things he is “doing”?

          Just for the record, that is a joke; I would like to make clear, yet again, the federal government and its actors and agents in the course and scope cannot be a RICO defendant.

        • BoxTurtle says:

          It’s really a very simple case, no need to go RICO. And good reason not to. But we’re lacking a prosecutor willing to do his/her job and there’s no interest in ObamaCo in appointing such a person.

          In short, they’re going to get away with it.

          Boxturtle (And outside of FDL regulars, nobody will know or care)

      • harpie says:

        Just like disrespect for the law from “above” trickled down at Abu Gharaib and a hundred or more hidden places.

    • emptywheel says:

      Yeah, that’s my point and the reason I keep harping on this.

      CIA got to take these documents to Langley at precisely the time SASC was interviewing Mitchell and Jessen and the JPRA folks.

      Barron says they had the documents for “a month or two,” and that they don’t give them back until July even though the FOIA response in question was submitted in early June.

      Add in the mystery as to why they were able to do the second go-around (much less the first one), and why they did it offsite instead of onsite. None of it adds up.

    • Jeff Kaye says:

      The CIA has been destroying documents regarding its classified programs for decades. Should we really be so shocked they would continue doing this? Outraged, yes. But, what would Captain Renault say?

      It’s time we — this country — Congress — stand up and make the clandestine agencies accountable for what they do. Failing to do that, their influence has grown and grown.

      That’s a great point re timeline, EW, @35. There’s more meat to be squeezed out of that JPRA pie yet.

  5. BoxTurtle says:

    Something elese to keep in mind: A scif is NOT the national archives. Once a document is there, it can be removed, changed, added to (Some “documents” are actually entire file drawers), destroyed, or transfered to another scif. All perfectly legal.

    Now, here’s a thought. Sometimes, as part of an update or such, the old document will be destroyed and a superseding document WITH A NEW NUMBER would replace it. I suppose this could be used to hide documents in plain sight, though the shredder would be my choice. And there’s ALWAYS a shredder availaible.

    Boxturtle (The oval office is part of a scif. Perhaps the missing papers are in the lap drawer)

    • klynn says:

      Clarification on my question @ 3:

      “But OLC appears to have first discovered the problem before last year. Barron’s declaration describes one OLC lawyer attempting–but failing–to identify all the documents in the Vaughn index during late December 2007 or early January 2008. At that time, the OLC lawyer was only able to identify 150 of the 181 documents listed in the Vaughn index.”

      Did Archives receive any additional input about the year laps besides Barron’s response? Why was there just Barron’s response?

  6. Jim White says:

    I’m still stunned that the original Vaughn index was prepared so sloppily. Am I correct in recalling that the original documents did not get unique identifying marks put on them when the first index was prepared, and that this index was prepared by someone from CIA? Doesn’t that make whoever did that first index the prime suspect for at the very least enabling the removal/destruction of documents?

    • emptywheel says:

      If I were a suspicious type, I’d say that when CIA did the initial response (they did it in OLC’s SCIF) it was just Bradbury’s way of giving them an opportunity to identify how big a risk those documents were, particularly as people like OPR starting sniffing around them.

      The second round–the one where they inconceivably take them back to Langley and keep them for at least 3 weeks after the FOIA declaration has been submitted, all at a time when SASC is honing in on Mitchell and Jessen and JPRA–that’s when I think it likely that a document or several simply disappeared. Or got altered in a way as to match the initial Vaughn (which was really just page numbers after all) but in a way the diminished the danger.

  7. tjbs says:

    EW I hope all these posts go into Mr. Durham’s mailbox.

    I guess we’ll hear from him sometime, it takes so long to determine weather the destruction of evidence is a crime. Unless he recovered the tapes and they weren’t destroyed.

        • BoxTurtle says:

          Health care will, I am certain, take up too much of the senate’s limited time and resources. Obviously, they’ll have to delay until that’s through.

          Boxturtle (I’m guessing that DADT debate will have priority as well)

      • bobschacht says:

        Sen. Leahy disagrees with bmaz:

        Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) blamed Republicans for the delays on Johnsen’s confirmation.

        But of course this doesn’t mean that bmaz is wrong…

        Next: When will her nomination get acted on the Senate floor?

        Bob in AZ

        • bmaz says:

          But Republicans have insisted that the Democrats could have brought her nomination up for a vote last year

          The Republicans are right. Leahy has consistently shied away from pointing the finger at Obama and Reid, but here I think he is talking about the quorum failures over the last couple of attempts, and by mass avoidance, the GOP committee members did create a situation where any Dem absences did cause the quorum to be lost.

      • Mary says:

        Sounds like all the Graham et al deals have been cut – now that the farm’s given away, they can hire that farmer.

    • earlofhuntingdon says:

      I assume that means Holder has hired David Margolis as an outside special adviser so that he can review and “correct” OLC’s findings.

      Harry Reidless also has to schedule a vote of the whole senate, too, and get the votes in line to pass her nomination along with a long waiting list of other candidates he and Obama have let twist in the wind, while their agencies make do with no or with less powerful temporary leadership.

  8. MadDog says:

    Totally OT – Also from Main Justice:

    “Smoking Gun” Belatedly Revealed to Defense in Blackwater Case

    Prosecutors in the high-profile case of former Blackwater Worldwide security guards accused in a fatal 2007 shooting incident in Iraq belatedly turned over an exculpatory e-mail to defense attorneys, a transcript shows…

    …In a closed hearing in federal court in Washington on Oct. 26, David Schertler, who represented defendant Dustin Laurent Heard, first raised the issue of the e-mail with Judge Ricardo Urbina. In the email, one of the prosecutors, Assistant U.S. Attorney Jonathan Malis, asserts that despite the fact that the only evidence the government has against defendant Nicholas Slatten is tainted, they should use it anyway, Schertler said at the hearing…

    • bmaz says:

      I skimmed that stuff off and on over two nights; it is pretty ugly. It will get the same happy grease as all the other DOJ material misconduct.

  9. earlofhuntingdon says:

    “Remarkably lax” seems understated even by Scott Horton standards, let alone EW’s. It’s as if everyone in the DoJ senior enough to be heard outside its corridors was acting like the panel of judges in Planet of the Apes. When Charlton Heston’s character attempts his own defense, talking in a world where humans only grunt, the three orangutan judges put their long-fingered hands to their eyes, their lips and their ears.

  10. JohnLopresti says:

    I noticed DJBarron mentions at least one (unclassified) Vaughn index*s being made (at CIA) without a corresponding classified version of that Vaughn index. Also, DJBarron declares, several times no imaging was employed to document the actual content represented by the various recensions of the Vaughn index. Further, I did not follow DJBarron*s narrative in several passages which depicted additional likely responsive documents* discovery but only vague mention of how their descriptions might have been added to the **Vaughn index**. Then again, there was the casual description that at CIA the Vaughn index description for approximately a half dozen longhand notepages was identical, affording no certain way for a subsequent reviewer to identify each of those pages of notes individually. Most unanticipated, for me, was the casual statement at several document set reviews, that no imaging was done, based on concern for sensitivity of several items in the document set; as if generating image replicas would create inordinate expansion of risk of disallowed viewing. Then there was the description of the several-day search by three reviewers which yielded many apparently responsive but previously not Vaughn indexed documents. The declaration seems an arduous and thorough representation, but the events it appears to chronicle look like extensive bureaucratic problems with recordkeeping.

  11. Jeff Kaye says:

    OT, sort of. But an article (by me) on internal DoD memos citing the dangers of waterboarding, written in 2007, and referring to internal struggles on the question going back two years before that (to 2005, at least), is now up at Truthout. (So this is a plug, but one of some interest, I believe):

    Waterboarding Too Dangerous, Internal DoD Memo Reveals

    …a previously unreleased internal Department of Defense (DoD) memo, summarizing a review of the Navy SERE program in late February – early March 2007, reveals that there was fierce criticism within the DoD of the Navy SERE school in North Island, San Diego, for being the only SERE facility to still use waterboarding in its training program.

    The memo, obtained by Truthout, stated that the use of waterboarding left students “psychologically defeated” and impaired in the ability to develop “psychological hardiness.”

    The attempt to remove waterboarding from Naval survival school training goes back to at least 2005, which was also the period when then-Principal Deputy Assistant Attorney Steven Bradbury was fashioning a series of legal opinions that approved waterboarding as an “enhanced interrogation” technique….

    The Joint Personnel Recovery Agency memo from Fort Belvoir, Virginia, is marked “For Official Use Only,” and addressed to the headquarters of the departments of the Navy and the Marine Corps, and copied to the Office of the Assistant Secretary of Defense for Global Security Affairs. US Air Force Col. Brendan G. Clare signed it….

    In an attachment to Colonel Clare’s memo, “Observations and Recommendations,” JPRA indicates that the waterboard technique as used in the SERE schools is “inconsistent” with the JPRA philosophy that its training and procedures be “safe, effective” and provides “a positive learning experience.”

    The water board has always been the most extreme pressure that required intense supervision and oversight because of the inherent risks associated with its employment…. When a student’s ability to develop psychological resiliency is compromised… it may create unintended consequences regarding their perception of survivability during a real world SERE event. Based on these concerns and the risks associated with using the water board, we strongly recommend that you discontinue using it [underlined in the original].

    There’s much more at the article itself, including a selection from a never before noted essay by Bruce Jessen.

    I believe that, since the SERE schools had discontinued waterboarding for the most part some years ago, before 2005, that there must be some empirical evidence of its misuse and dangers even prior to that I discovered. This is a wedge through that door, I hope.

    • fatster says:

      You beat me to it, but only for half. The other half is that Rawstory is now linking to your article over at truthout, too. Good on you.
      LINK.

  12. qweryous says:

    Look at how ‘hide the ball’ occurred on a previous Bushco occasion and W himself was involved with A. Gonzales.

    Here is an old report on events (October 17, 2007) concerning another OPR derailment.
    http://www.huffingtonpost.com/2007/10/17/gonzales-investigated-sub_n_68911.html

    An excerpt :
    “During much of the same time that Gonzales oversaw the leak investigation, the Justice Department’s Office of Professional Responsibility was attempting to conduct an entirely separate investigation into whether Gonzales and other government attorneys acted within the law in approving and overseeing the eavesdropping program.

    President Bush personally intervened in spring 2006 to shut down that particular investigation by not allowing OPR investigators to be granted the necessary security clearances. Gonzales has told Congress that Bush consulted with him on the matter, and that Gonzales actually advocated that the security clearances be granted so the OPR probe could continue — but that Bush overrode that advice.

    The OPR inquiry was shut down not long after the head of OPR, Marshall Jarrett, had informed superiors that his team was about to interview witnesses and review records that would directly contradict sworn testimony to Congress by Gonzales, according to Justice Department records and interviews. The testimony in question was Gonzales’s assertion that there had been no “serious disagreement” within the Bush administration regarding the legality of the eavesdropping program.”

    EDIT: I question the veracity of some of what is said in this article, but something like what is described did happen.

    • emptywheel says:

      Note that pertains to the OPR investigation of Yoo’s warrantless wiretapping program, not the torture program.

      AFAIK, they are distinct investigations. The DOJ IG report on warratneless wiretapping was held up last year waiting for results from OPR.

      Which is not to say both investigations weren’t spiked on clearance issues. THe OPR Report is very vague about when they did get clearance, but I do believe 2007 would make sense for a lot of reasons.

  13. NorskeFlamethrower says:

    AND THE KILLIN’ GOEZ ON AND ON AND…

    Citizen emptywheel and the firepup freedom Fighters:

    Another great post but my question remains: where does all of this leave us, particularly with the recess appointment of Dawn Johnson on the horizon?

    Is there a qid pro quo bein’ negotiated here in return for her gettin’ a vote? It seems to me that ObamaRahma have made a whole bunch of promises to the permanent government and security services that might compromise Ms. Johnson’s tenure and her ability to advance the ball in this shitty rotten game.

    Where do we go from here and is there a political godfather or two in the elected government with the chops to kick all this into the political stew before November?

    KEEP THE FAITH AND PASS THE AMMUNITION, LOOKS LIKE THE PROBLEM WON’T GO AWAY!!

  14. klynn says:

    EW,

    When ACLU filed their FOIA, that FOIA only went straight to OLC? No one was cc’d in National Archives?

    I am confused by National Archives just finding out about the missing docs at the end of Feb 2010? That does not seem to jive.

    • emptywheel says:

      Don’t confuse the emails (in which NARA is involved) with these documents (in which it isn’t–at least not yet). They found out about the emails, but not necessarily the documents.

      Hmmm. I think I need to call NARA tomorrow.

      • klynn says:

        Thanks for checking on that. Looking at the NARA protocols, I am still confused. I get that they knew about the emails but the missing emails should have led them to the missing docs based on how I understand their protocols and SOPs? Or, I am confused.

  15. TheShadowKnows says:

    It appears I have been banned from Firedog. I suppose I didn’t call other posters Pups often enough (not even once really). Or give out recipes. My bad.

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