JPRA’s Advice Has Gone Missing

As I noted earlier, ACLU got a new Vaughn Index today, covering the OLC documents pertaining to CIA’s torture program.

But what ACLU really got is a long admission from Acting OLC head David Barron that OLC has lost ten or more of the documents included on a Vaughn Index provided in 2007.

And one of those documents–apparently referred to as Document 6 in both Vaughn Indices–is one of the packets of information JPRA provided to Jim Haynes and from there to OLC as back-up to the Bybee Two Memo (though note, given the date of July 25, this does not appear to be the document compiled urgently that described waterboarding).

The 2007 Index refers to the document as a 46-page document, dated July 25, 2002, providing legal advice. Yesterday’s Index refers to the document as a 59-page document, from and to the DOD, dated July 25, 2002, providing legal advice.

The page discrepancy, by itself is interesting (that is, if they don’t have the document, then how do they know that the original index listed the page numbers wrong?). 

And then there’s the fact that this document is missing. Some of these documents discussed SERE techniques as torture. In the SASC report, both Jim Haynes and John Rizzo were very squirmy about discussing how DOD advice to to OLC for CIA’s torture memos; if we had the document itself, we might be able to explain that definitively. And then there’s the possibility that someone took notes on this document.

But, if my reading of the two Vaughn Indices is correct, we can’t answer those questions. Because somehow, one of the key documents in the generation of the torture memos has just disappeared from a SCIF facility.

85 replies
    • perris says:

      And it’s all ‘cuz they were too sensitive to copy before they sent them hither hitler and yon.

      got that fixed I did

  1. earlofhuntingdon says:

    Acting OLC head David Barron

    Aren’t there legal limits on how long an official can remain as “acting head”, in lieu of an official confirmed by the Senate? Mr. Barron is acting, so to speak, because Prof. Dawn Johnsen’s nomination to head the OLC remains sitting in Mr. Obama’s in-basket, collecting dust and Rahm’s drool.

    Mr. Obama has punked both Ms. Johnsen, who wisely returned to Bloomington pending Godot’s arrival, and Mr. Obama’s progressive supporters. He has thereby managed to stifle needed reforms within DoJ overall and the OLC in particular. The fate of Ms. Johnsen’s nomination is curiously at odds with the Bush holdover USA’s, who remain in office despite their checkered past. Mr. Holder, where art thou in this bureaucratic fight? Or do you first have to ask your Bush holdover assistant what the answer is?

    One is tempted to consider those circumstances as emblematic of Mr. Obama’s lack of interest, even fear, when it comes to change and reform, except when looking for snappy election slogans.

  2. Jeff Kaye says:


    Could the advice have included any of the real research done on SERE techniques (some by a CIA researcher, looking ostensibly at PTSD symptom development… which is itself telling), as discussed in bmaz’s post last night, and in a post I hope to have up later today?

    We know that JPRA gave contradictory info to Haynes, saying, for instance, that waterboarding caused no long-term harm, but also that it was not good for getting information. They also may have explained why waterboarding was discontinued at all but the Navy SERE schools. There’s a lot one can talk about in 46, um 59 pages.

    This is an important catch!

    • emptywheel says:


      Take a close look at it.

      There are two later documents to DOJ on psychological/physiological impact of waterboarding. I’m traveling right now so I can’t compare those page lengths with what we’ve got from SASC. But some of those documents were handed over separately. And it LOOKS LIKE the JPRA document calling SERE techniques torture may not have been included (in which case, I’d sure like to know who removed it).

      So I don’t know if that’s what they pulled off–it’ll take a closer look than I can give it here.

  3. earlofhuntingdon says:

    Losing track of already discovered evidence in a pending case? A high-profile case involving the U.S. Department of Justice? From a SCIF.

    Surely, after the debacle of Sandy Berger’s alleged mishandling of classified information, such facilities operate with renewed emphasis on logging, tracking and handling documents, non? It’s enough to make one think, ahem, of obstruction of justice.

    Query: 2007, the date of the last Vaughn Index, was during the Bush presidency. So it would be useful to know when the document went missing, before or after the change of watch.

    P.S., in re Mr. Berger:….._espionage

    • emptywheel says:

      Again, I wonder whether the OLC lawyer who was trying to find all these documents late last year and earlier this year was Bradbury, trying to fix this on his way out the door. I have no idea whether it was him, but I do wonder…

      • Mary says:

        I’m going to say it probably wasn’t him, but for a very weak reason; that being that if it was him, then I think that they had a duty to disclose to the court that the OLC attorney who took that look at the docs back from OPR was the same attorney that OPR was investigating in its review of those docs.

        The whole Barron Declaration is just absolutely mindboggling. On the utmost simplified level, he says to the court, presumably straight faced, that:

        a) he says to the court, presumably straight faced, that no one ever made any copy sets of what was indexed to this court in 2005 bc everything was so “sensitive.” Ok, well, ignoring for now that you could quite easily put tracking sheets with documents that are too “sensitive” to copy, at least summarizing which pieces of litigation you’ve listed them in, what he is also saying is that they really can’t say with any certainty if the docs represented to have been presented to courts in ANY OF THE LITIGATION are accurate, or traceable even, sets. Gosh, if they found almost double the number of docs that they originally indexed (even while 11 or so docs go missing) in their new review – um, what about the other litigation?

        b) Although all this info was too “sensitive” to keep a copy set in the SCIF, apparently it was heigh ho and away we go with shipping bits and pieces of the sets and docs around to various lawyers at both OPR and CIA and without any records on who had what (such sensitive docs are physically handed over and out of OLC’s SCIF without even a receipts listing???) A court in CA couldn’t keep a copy bc of the SCIF issues, but all kinds of lawyers throughout the administration just waltzed in and picked up what they wanted, whenver they wanted, and without receipts? No way.

        c) So, how did they make info available to those ED VA lawyers investigating torture and who can even begin to know what info was and was not made available, if there are no copy sets and no tracking sheets even for torture docs? So the criminal declinations were based on a review of … can anyone say what?

        d) He, Barron, can’t really tell the court how the OLC came to not only have missing docs, but to have so many docs that just can’t be identified at all, bc, well, golly, he wasn’t working there at the time and the guys who were are gone now. Jeeminy christmas – it’s not like they are missing persons! Hell, DOJ sure seems able to find and speak with ex-employees when it comes time to defend them in their torture suits – and it’s not like Bradbury et als duties to the tribunal for their work product disappear after they move on to a better paying gig somewhere else. It ain’t that tough for DOJ to exercise something called due diligence, where you don’t just scratch your butt and say “I dunno” but instead you actually pick up a phone, start off with a “Hi, Steven, about that fraud on the court old Vaughn Index your guys worked up in 2005 …

        It’s hard to even get started on the declaration, it sets off so many simultaneous shock waves. Um, gee, think DOJ has managed to come up with a “system” to make sure that they could come back next year and now which freakin documents they are NOW indexing to the court?

        What the hell happened with lit notices in all of this, especially from 2003 through 2005 and now, after? And how is it that the damn torture tapes never ended up in the OLC SCIF? If they didn’t, what other torture evidence isn’t there and has never been undertaken to be accumulated by the DOJ? How were people supposed to know about and find things that were floating around in Gonzales’ briefcase and Cheney’s safe, much less in torture chambers littering the globe?

        Barron’s declaration would be funny if it weren’t so disturbing. They all but hired a medium to conduct searches throught he OLC SCIF. But OPR and CIA didn’t seem to have open invites for anyone. And in the end, it’s like they either couldn’t find anyone left they trusted in OLC to conduct another search or (more likely) the guys who were going to have to go to court and file the damn declaration (the SD NY lawyers – still not sure I know procedurally why they are handling this case) were so distrustful of what they were being told and so steeled for how a decent judge would just go ballistic over it that they wanted to be able to say that they had also done the search themselves and were not just relying on Barron’s declaration.

        I just have to pick a place and stop. It’s so incredible.

        • Peterr says:

          I’m going to say it probably wasn’t him, but for a very weak reason; that being that if it was him, then I think that they had a duty to disclose to the court that the OLC attorney who took that look at the docs back from OPR was the same attorney that OPR was investigating in its review of those docs.

          At this point, I think OLC has an obligation to reveal to the court — either openly or if need be in a classified filing — some if not all of these attorneys’ names.

          OLC is admitting to the court that there is either criminal activity or sloppy lawyering going on with respect to the documents at issue in this case. Either documents were destroyed/removed, or they were never there to begin with and thus false representations were made to the court by the government. Either way, the judge is going to want to know who is responsible.

          • emptywheel says:

            I’m really curious how many of these (including the JPRA document) were reviewed for the OPR report. If they’re in there, then presumably they didn’t get willfully disappeared, right?

          • Mary says:

            I think you are right and not just on this front.

            It’s all been pretty incestuous from the get go and the courts should have some information to inform its decisions.

            You have OLC, as delegee from Ashcroft as AG, writing up the “AG’s” position on things like torture, where the AG himself (Ashcroft) is planning on relying on those memos for his own criminal defense, even though the memos are technically “for” CIA and DoD. You have advice being given to Gonzales as WHC but then Gonzales coming in as AG and overseeing the production of documents on the advice he was given as WHC in various litigation. He’s the AG in 2005, when the first round of indexes are being put together, and Comey is AG through Aug of 2005. I thought it was odd that Comey was getting to review the Bradbury OLC memos at all, but really when you get right down to it, Gonzales should have been recusing from any OLC oversight on torture memos by 2005, since Bradbruy is supposedly reviewing advice that Yoo gave to, among other, Gonzales as WHC. If he recused, then Comey should have been acting for torture review matters, but I don’t think anyone every really did that – they recused Ashcroft in the Arar case where he was a named defendant and Comey both filed the State Secrets declaration there as acting and presumably set the DOJ policy on document preservation and lit holds in that case.

            But then you have OLC giving out opinions on torture for the benefit of AG, Principals and CIA and presumably accumulating several “safe drawers” of torture evidence, while supposedly CIA IG is investigating CIA in some narrow mandate for torture and OPR is supposedly also involved in investigating DOJ lawyers and then there’s the ED VA guys who are supposedly conducting criminal investigations into torture and … who is given what? There’s no copy sets, but also no tracking, no specific receipts on all these document hand offs? At the same time in 2005 that supposedly ED VA is putting to bed criminal referrals – docs relevant to those referrals are being shuffled between OPR and CIA without tracking mechanisms and no one can say what the ED VA was given either and no one can really track what docs (using the broadest definitiion of docs to include things like tapes) are reviewed in response to production or non-destruction orders (or just standards of prof duty and conduct or due diligence requests for review) in cases ranging from Padilla to Moussaoui to el-Masri to Arar to the GITMO cases to the ACLU FOIA cases to …

            Wow – no one can really say who has produced what for what kind of indexing in which cases. And that’s in part because “those guys are gone” and they just leave it at that?

            I’ve beaten it as a dead horse for a bit now, but the real investigative referral that the Judiciary committees need to demand independent counsel for, and that they need to get firm regs on or get new statutes allowing etc. is to investigate DOJ and the Executive branch’s compliance with duties to inform Congress and the courts and where applicable, citizens vis a vis litigation and FOIA and similar requests – duties where we already have a huge list of violations and where there is such a pattern that has emerged that you can’t ignore it. It’s the only approach that gives a broad enough mandate to cover all the bases with the criminal activities operating out of DOJ and the Exec branch IMO.

            But I guess for now a start would be for a court to tell Barron to haul Bradbury and Comey and Ashcroft and Gonzales and McNulty’s butts in – as well as the OPR and CIA lawyers involved, and get a straight story on who the hell did what, with what, in the 2005 productions and forward.

        • bobschacht says:

          Thank you, Mary, and Peterr’s follow-up @ #31, and Mary’s follow-up @ 35, for your insightful commentaries, explaining the significance of these matters.

          Mary, I second your motion @ 35 for

          …the real investigative referral that the Judiciary committees need to demand independent counsel for, and that they need to get firm regs on or get new statutes allowing etc. is to investigate DOJ and the Executive branch’s compliance with duties to inform Congress and the courts and where applicable, citizens vis a vis litigation and FOIA and similar requests – duties where we already have a huge list of violations and where there is such a pattern that has emerged that you can’t ignore it. It’s the only approach that gives a broad enough mandate to cover all the bases with the criminal activities operating out of DOJ and the Exec branch IMO.

          Thank God for the legal team at ACLU, which is doing what many others should also be clamoring for. I need to send more shekels their way…

          Bob in AZ

        • timbo says:

          Reminds one of the mysterious disappearing emails from WH, eh? And how the Republican party lost all those emails that were illegally not archived on their servers? Yeah, it’s pretty obvious that no one wanted to have their fingerprints on a lot of information…to avoid various criminal inquiries.

  4. earlofhuntingdon says:

    Bradbury or a peer in Bush’s DoJ would seem to have more incentive to clean up the files (at the risk of obstructing justice) than any successor. Let’s hope the judge in this case asks the same questions you do, and can demand answers.

    • emptywheel says:

      Yeah, if you’re Judge Hellerstein at this point, how much do you laugh when CIA asks for summary judgment on the argument that the destruction of the torture tapes was not contempt?

  5. WilliamOckham says:

    I need to check this, but I think I remember that the CIA still has a copy of this document. If that’s true, that’s probably the source of the page discrepancy.

      • WilliamOckham says:

        I might be wrong. I thought I had seen it in the OIG remand Vaughn index, but I just checked and I don’t think it is there. On the other hand, that index is still just a sample of the OIG documents. Wasn’t this document referenced in the IG report? If so, then a copy should still be in their files (not to mention at DOD). If it disappeared from all three places, we’d really have a conspiracy…

        • emptywheel says:

          It’s definitely in the SASC report (and there are bits of it that are in the SASC backup of it). But I’ll need to check back–I don’t remember it being in the IG Report.

          • WilliamOckham says:

            It’s hard to keep it all sorted out…

            By the way, don’t miss the significance of document 39:

            This is a ten-page draft, from OLC to CIA. It is confirming legal advice, which was initially given orally, on whether a detainee is considered a protected person if involved in counterterrorism activities and captured.

            • Mary says:

              That doc is June 2004. Keep in mind that the Goldsmith March 2004 memo allowing for shipment to torture of non-Iraqi al-Qaeda members captures in Iraq (but not providing any guidance on making sure they have al-Qaeda members or that they really were non-Iraqi) is out.


              So you have to wonder what is in the June one, which presumably is about people who were not “captured” or more realistically “kidnapped” that makes it so much more senstive? Like maybe oh, say Tenet (who gets word on el-Masri in April of 2004) and Rice (who gets work on el-Masri in May 2004) get a bit concerned about what might happen about the mistakes out there who have been kidnapped from non-war zones.

    • maryo2 says:

      Vaughn Index, Document 19 dated 06/16/2003 is the Legal Principles being faxed to Philbin.

      Document Description: This is a three-page document, with a fax coversheet and a routing cover sheet, from a CIA attorney to a DOJ attorney, providing the legal guidelines for the CIA’s detention and interrogation program of captured al-Qa’ida personnel.

      Funny that the female (the handwriting says female to me) who sent the fax felt inclined to write in her own script “Copy of final legal summary.” given that whether the Principles was really a DOJ opinion was questionable.

  6. emptywheel says:

    Shit!! It looks like Goldsmith (or possible Daniel Levin) called Yoo on that same day–June 10, 2003–to figure out WTF was up with the Legal Principles document. He memorialized the conversation.

    Pleaseoplease, can we have that one?

  7. scribe says:

    No one could possibly have foreseen that these documents could have disappeared from a safe in a SCIF.

    I note from paragraph 5 of the Barron Declaration:

    I was informed that a copy set of the indexed documents was not made when the documents were compiled in 2005 due to their extreme sensitivity at the time, and the original documents were not maintained over time as a discrete set within the OLC files after the initial 2005 search for responsive documents. Instead the documents were stored in safe drawers in OLC’s SCIF, intermingled with other documents on related topics in the working files of the Office. Moreover some of the original documents have been in the temporary custody of other government offices on several occasions since the initial search in 2005.

    In other words, they were in Cheney’s man-sized safe?

    Maybe Mr. Addington was working late and spilled some coffee on them and then lit them on fire while trying to dry them by the fireplace? Accidentially, of course….

    • JimWhite says:

      Well they had CIA attorneys compile the list which was submitted on June 7, 2007. It’s not clear from Barron’s narrative if the documents continued to go to “other offices” as they did before being called back for this iteration of the Vaughn index. He mentions docs going back to OPR but no other groups. For reference, Cheney’s “fire” was on December 19,2007.

      No effort was made to mark the documents according to the 2007 Vaughn list until “late 2007 or early 2008″ when an OLC attorney marked them in pencil. Given how vague the descriptions were in the 2007 list, doesn’t it strike you as an intentional effort to make it impossible to come back later and identify individual documents? Did the CIA attorneys doing this (I’m thinking Rizzo had a hand in it) assume nothing further would ever come of this or were they setting up the opportunity for documents to “get lost” as it now appears has happened?

    • cinnamonape says:

      Instead the documents were stored in safe drawers in OLC’s SCIF, intermingled with other documents on related topics in the working files of the Office. Moreover some of the original documents have been in the temporary custody of other government offices on several occasions since the initial search in 2005.

      Yes, I thought that was very interesting as well. Perhaps this raises a whole new set of questions about additional documents.

      Why did these agencies request the documents held in the OLC’s investigation?

      Were these the originating departments within the originating agencies merely “recalling” their own records, or a third party?

      The comment that the documents have been in the temporary custody of other government offices on several occasions since the initial search in 2005″ certainly suggests repeated movements between different agencies.

      If the latter were is the official request(s) and the rationale given for them to obtain the record? Did the provision of these records violate the confidentiality criteria claimed to make them exceptions to the FOIA criteria? For example…if the criteria is “attorney-client” confidentiality … did the agency itself provide wider distribution that makes this claim untenable. Were documents distributed without regard or reference to the security or “need to know” criteria to defend against their release?

      What was the rationale for intermingling the records with other documents? Were these surrounding documents comments on the records, information germane to the investigation or related to the activities described within the records?

      Or were the documents placed in files that concealed their whereabouts? That increased the probability that they would be lost, or available for subsequent destruction or theft?

  8. fatster says:

    Hope this hasn’t already been linked. Apologies, if it has.

    ACLU sues for files on Bagram prisoners

    “After months of asking politely and being refused, the American Civil Liberties Union has sued the U.S. Departments of Defense, State and Justice, along with the Central Intelligence Agency, to obtain files on prisoners in U.S. custody at the Bagram detention center in Afghanistan.”


    • WilliamOckham says:

      Maybe I’m reading too much into that one, but doesn’t it sound like Goldsmith originally had a CIA attorney who would have co-signed his letter to Helgerson?

  9. emptywheel says:

    Note, the back and forth about rendition is really hot in mid-July. And there is a confirmation of torture techniques for a particular detainee. That’s particularly interesting bc I’m not sureit shows up in the Levin memo from September. In any case, it mkaes it more likely this detainee is one of the ones the MAy 2005 memos were written for.

  10. dude says:

    Dear Emptywheel-ers:

    I have tried ( as a lay reader of law and these posts ) to keep up with this story. I am well and truly lost. Could somebody kindly summarize.

    My impression is that the Judge has persistently asked for an accounting of documents from the government and the government has tried to argue they are too sensistive to release even for private viewing by the judge, or even to lawyers with high security clearance. But the government relented inasmuch as the Judge asked for list of sensitive documents. So one list has followed another, each one revealing more and more errors and omissions and folderol and raising more questions in the mind of any reasonable Judge who will not permit his leg to be pulled completely out of joint over national security claims. The documents in question concern the legal advice of DOJ (?) officials and White House (?) officials over the extent and nature of interrogating (torturing) “combatants” who (do/do not) have right to Geneva protections (?) Some interrogation techniques in question are reverse-engineered from the SERE manual of training for US Armed Forces (?)

    So the government continues so-far-successfully (no matter how stupid their arguments) to hide the documents and conceal what they know. Where is this really going? Or rather, where can it realistically end up?

    How am I doing?

    But I am lost as to which agencies are the apparent source of ofuscation. This latest business over missing documents and transmittals and logs—

    I assume these are not digitally manufactured memos and documents, otherwise I’d be asking for back-up files.

    Help. I have weeds up to my ears!!

    • emptywheel says:

      Your summary is correct: Judge Hellerstein has been pushing the government to release “Vaughn Documents” (descriptions of hte docs they refuse to release along with the basis for refusing to release them). So far we’ve gotten a three Vaughns from CIA, and this one from OLC, the part of DOJ that writes the legal memos authorizing torture (where John Yoo worked) so far this year.

      What happened today is that OLC admitted that they can’t find all the documents they listed on a Vaughn submitted in 2007.

      OLC had the documents in a safe that should have required people to log documents in and out, which makes their disappearance all the more suspicious. I have no idea what happens with drafts after the memos are finalized–it’s a good question. But a lot of these have either handwritten notes (which obviously may be important) or distribution/email channels (which show who was talking to whom). So even if you find the soft copy of these documents you lose further information.

      • dude says:

        Thank you. Is not logging something or keeping a routing list a crime?
        A misdemeanor? I work for a state government and I know we have laws about record keeping, but about all they do is get offenders fired no matter how much damage is done.

        • Mary says:

          Some of the more particular rules at issue go to the legal proceedings involving those documents as much as logging systems.

          In a piece of litigation, if there are items that are being asked for (as discovery or under a FOIA request) by one party, the other party has to either produce them or explain to the court why they are not being produced. In a FOIA setting (the ACLU case here is that kind of setting – other cases out there also had document production requirements that were in a discovery setting and not a FOIA setting), the way the government is supposed to respond with the documents that it would have to produce “but for” it’s right to assert some kind of exemption or privilege is through a “Vaughn Index”

          A Vaughn Index is a judicially created requirement on the lawyers for Gov, in response to a FOIA request, to: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption. What would typically happen is gov would make a copy set of documents it is not going to produce under the FOIA request litigation and that set would match up with the index. That way the original documents continue to be used and in play and filed however they need to be filed, etc.

          Here, Gov/OLC/Barron is saying that back in 2005, when the Vaugh Index was prepared for this piece of ACLU litigation (originally they had tried not have to prepare one at all and just claim generic privileges), a copy set was not kept because *the documents were too sensitive.” Now, they are asserting this as a fact, although supposedly the people who made the decision not to keep a copy set aren’t around and no one is getting them to make any declarations under oath about the “why” of there being no copy set. Barron is very careful to make sure that he is only stating things “on information and belief” over and over, since he has no personal knowledge, and yet he chirps up with the reason for no copy set as if he does have personal knowledge – which is interesting in and of itself

          OK, even if you didn’t want to make extra copies of the documents because they were so senstive, they are being asked for in all kinds of settings – not just this ACLU litigation. So one way that I am familiar with (and there are probably others that the litigators here would know about) to keep track of the documents on something like a Vaugh Index (or a production list over which privilege is being asserted and that you won’t bates stamp) is to affix to the documnet a tracking sheet – which litigation it is responsive too, what exemptions/assertions were relied on in that litigation to not produce it, how it is referenced in that litigaton. There was no reason that the documents in the OLC SCIF couldn’t have tracking sheets in lieu of copy sets.

          In any event, of all kinds of documents being held in the OLC’s Sensitive Compartmentalized Information Facility under various filing systems and mechanism, some 183or so were determined back in 2005 to be responsive to the ACLU requests, but OLC wasn’t going to turn them over, so onto a Vaughn Index they go. But then, supposedly, no one made any notations on them or tracking sheets or anything and they were all returned to their generic places in the filing system. Then, at various times and from time to time, at least the CIA and OPR stopped by the OLC SCIF and took stacks of info for various reasons (and during this time, other litigation was going on where document production was at issue and other FOIA requests were being processed or subject of litigation as well, some where some of the same documents that were on the ACLU 1005 Vaughn Index were at issue, as well as other documents, and some of those documents were staying in the OLC SCIF, but some were being trotted over to at least OPR and CIA – and without any real revelations of how they were handled there. For that matter – we are only getting this info for the OLC Vaughn Index documents and only getting it now – what was happening with documents that were in the care and custody of other people and places isn’t even being touched on yet.

          So as EW has mentioned, the Vaughn index gets one pre-Obama correction and now, in connection with responding to filings by the ACLU and rulings by the Judge on the sufficiency of the Vaughn Index, Barron & Co at OLC are saying at least four sets of very disturbing things.

          1. Because the prior index(es) were so bad when it comes to adequately describing the documents not being produced, and because no copy sets were kept, OLC isn’t really sure for a big chunk of the 183 documents if they can really “match” the documents that they are now holding back and not producing with the documents under the old Vaughn index, especially since the ones they think are matchs often have discrepancies from their description on the old index (like page numbers, dates, etc.)

          2. Even making their best guesses, they have a set of at least 11 documents from the old index that they can’t find.

          3. After the first index was made, documents have gone in and out of the OLC SCIF to other agencies and to other departments of DOJ, without any way to trace what went to whom, when, and whether it came back.

          4. Oh, and by the way – once they started looking so hard for those missing 11 or so documents they realized that there are another 160+ or so documents that SHOULD HAVE BEEN on the old list, but were left off.

          Now I don’t know what the statutes or interdepartmental rules or any punishment related to them would be. But in the judicial setting, what we have are at least three sets of issues that I can see.

          One is the general professional ethics issues for the lawyers in the ACLU suit (and since the revelations go to how documents at the OLC SCIF were handled in general, this goes to numerous other suits), who have duties of candor to the tribunal and other kinds of duties and the impact of the failure to fulfill those duties. That impact can have a wide range of responses from the court, and they would typically be tied to how big the breaches are and how long they continued and whether originally responsible lawyers owned up or others had to come in and air the laundry, etc.
          The second is duties under procedural rules of court relaing to production and case law rules like the Vaughn index requirements, and what are the appropriate remedies for those breaches of litigation rules of procedure.

          The third is the issue and area of obstruction of justice. While you usually don’t have obstruction at issue for simple or non-material etc. violations of rules of professional conduct or even procedural rules, you can reach a point where the nature of the activity becomes fraud on the court and/or obstruction of justice.

          Basically, you have Barron telling the court that he has now, years later, found almost as many documents as were originally described that now need to be added. He’s also told the court that OLC so handled documents that it can’t tell what it did or didn’t list in indexes (and presumably that holds for other proceedings than the ACLU FOIA litigation) with respect to torture litigation. Oh, and documents that were supposedly so sensitive that you couldn’t make a copy set have been trotted around from offices to offices without receipts and without tracking sheets. Oh, and some seem to have never made it back. And oh yeah – there also seem to be way over 150 documents that no one bothered to mention to the court in this ACLU proceeding (and you have to wonder about all the other proceedings)

          And the court is going to have to decide now whether or not it is believeable that all this is a matter of Joey’s Dog Ate His Homework and let it slide, or not. And if not, how far it is going to go. If it wants to appoint counsel to pursue possible obstruction and fraud on the court issues, as was done in the Stevens litigation, then what? And how do you limit that to the issues of the ACLU case only, when what Barron has said clearly implcates lots of other litigation?

          • bmaz says:

            You know, it really is stunning disrespect of the court; contemptuous does not seem a strong enough word at this point. The question is what is the appropriate remedy set I suppose. If I were Hellerstein, I would award every penny of the ACLU’s atty fees immediately along with a fine. Striking the government’s pleadings isn’t probably that doable on a FOIA case involving classified documents, so that can prohibitively be ruled out I think. What I would love to see is Hellerstein pause, look down at the government table in the well and tell whatever DOJ yokels that are present “Well I am holding both of you in contempt, why don’t you trot on home, feed your dogs and pick up your toothbrushes because you are going to be staying in my hotel until your department and its superiors can straighten all this out to my satisfaction. And if the screw it up any further, they will be joining you”. Scenes we would like to see….

            • Peterr says:

              If I were Hellerstein . . .

              Hmmmmm . . .

              Scenes we would like to see . . .

              If you’re taking suggestions for that last one, I’d love to see a Marcy liveblog that starts “Patrick Leahy just gavelled to order the confirmation hearing for bmaz’s nomination to the Federal Bench. . .”

              Maybe next year?

            • Mary says:

              I’d love to see that one.

              Really, though, I have to think the Judge is going to want the SD NY attys who are handling this – and some Main Justice – guys to come and visit and explain how it is that they file on information and belief without even putting in their declaration whether or not they contacted the prior OLC (and CIA and OPR and SD NY if applicable) attys to get affidavits from them on what happened. How they managed to “miss” 160+ docs. How they managed to “lose” other docs. How they managed to not have a tracking system. What other courts they have contacted to advise of the failure of this tracking system and the *unreliability* of the DOJ submissions as to documents not being turned over. How you can have documents that can’t be turned over to the court for ex parte review even, bc they are so “sensitive” yet they can “go viral” in the Executive branch,journeying from department to department, before meandering their way back to a SCIF somewhere – or being lost for good.

              And if the judiciary committees and intel committees don’t jump all over this one, they aren’t worth having. Along with that investigation mandate into fibs and fraud and failures of info by Exec/DOJ to the courts & Congress that I think should happen, Intel might want to push on their own to also have some answers to how so much sensitive info has been so mishandled – to the point where no one can give accurate info on torture briefings to Congress, no one followed the rules on the CIA IG report briefing to COngress, Valerie Plame’s identity is tossed around for political reasons, DOJ and CIA can’t tell any court anywhere if they have been lying to it or not bc their records for documents that have been stored in SCIFs are so bad, sensitive intel on tapes of torture interrogations is destroyed, a sensitive source like al-Libi is handed off to Libya without notification or attempt to preserve his info or a CAT analysis and just when Congress might want to talk to him he ends up dead, and lawyers are being told that they can’t talk to their crim defense clients about the torture and abuse of those clients because it is “classified” even though a military judge has clearly said that we are talking about torture.

              I can’t believe a Federal Court Judge is going to let this kind of thing go by – and for that matter, I can’t belive that the judges in all the other cases that are affected by these revelations that DOJ doesn’t track its SCIF info and can’t really tell the court what documents it is or isn’t asserting privilege and exemption on, vs just not telling the court about at all, vs. losing, etc. – it’s just unbelievable.

              • Peterr says:

                Yet another case where you might have pity on the next AUSA that walks into a federal judge’s courtroom and tries to assert privilege. They might have completely proper grounds on which to do so, but the judge’s eyes are going to roll, and he/she is going to have to prove it six ways from Sunday.

    • cinnamonape says:

      I assume these are not digitally manufactured memos and documents, otherwise I’d be asking for back-up files.

      Doncha know…the DOJ and CIA use manual typewriters still, and destroy the ribbons

  11. emptywheel says:

    Dunno what the rules would be–most likely a threat to clearance, not even a misdemeanor (though I’m sure others here can correct me if I’m wrong). Of course if you can prove someone removed them to hide them form investigation, that’s different.

  12. klynn says:

    This appears to be quite the find EW.

    Yeah, if you’re Judge Hellerstein at this point, how much do you laugh when CIA asks for summary judgment on the argument that the destruction of the torture tapes was not contempt?

    It appears to be raining contempt.

    Thanks so much for your incredible effort.

    Hope the engagement was spectacular.

  13. JimWhite says:

    I got curious about how Sensitive Compartmented Information is supposed to be handled. My basic assumption was that documents of this level of importance would be handled very carefully and that each handling of the document would be recorded. I found a 1995 CIA document on SCI and was stunned by this section:

    6.9 SCI Policy. It is the DCI’s policy to eliminate document accountability as a routine security protection measure. SCI security or control officers responsible for SCIFs shall maintain records, manual or electronic (bar codes), of external receipt and dispatch sufficient to investigate loss orcompromises of SCI documents during transmittal.

    6.9.1 Accountable SCI that SCI information determined by the SOIC or designee to be of critical enough sensitivity to require the most stringent protection methods, including traceability and audit. Approval Authority. SOICs are authorized to approve document accountability, in writing, on specific highly sensitive program information within SCI. This authority may not be delegated. An annual report of accountable authorizations, volume, and cost may be required at the request of the DCI.

    SOIC = Senior Official of the Intelligence Community
    DAN = Document Accountability Number

    Okay, the documents in question are OLC documents, but the bad Vaughn Index came from CIA lawyers. So it would appear that CIA did not consider these documents to be of “critical enough sensitivity” to warrant accountability which would give them their own unique numbers (DAN’s) which would make identifying them on the Vaughn Index very easy [even if the cross reference list is classified and not released with the Vaughn Index].

    Gosh, I’d say the DCI’s under Bush took that “policy to eliminate document accountability” to a whole new level…

    • LabDancer says:

      “It is the DCI’s policy to eliminate document accountability as a routine security protection measure”

      I’d be interested in Bill Leonard’s take on this.

      That initial clause, read in isolation is refuted thereafter,

      [a] not merely within the remaining words in the very same sentence, but throughout the balance of the larger clause that you’ve reproduced, and

      [b] not slightly, but diametrically.

      So one is left to conclude that the drafting of the initial clause was either:

      [1] inept, owing to carelessness or incompetence with language, leaving open an absurd opposite interpretation,
      [2] duplicitous, as in deliberately invested with language that at one time expresses a policy goal of the agency, i.e. that of maintaining integrity of the record keeping system while at the same time prioritizing disengagement of individuals from the production of and access to the records.

      Where was it that Addington worked for all those years? The body may have been gone from the national intelligence apparatus some time before 1995, but it’s sure easy to see the spirit lingering.

  14. PJEvans says:

    So one way that I am familiar with (and there are probably others that the litigators here would know about) to keep track of the documents on something like a Vaugh Index (or a production list over which privilege is being asserted and that you won’t bates stamp) is to affix to the documnet a tracking sheet

    I’d call not doing something like this cause for serious action from the judge. Even businesses have to keep track of stuff that might be needed in the future for legal activity; I can’t believe that lawyers would be this careless.

    • Mary says:

      Recipient on some things, originator on others.

      I esp like doc 172 (I’m scrolling from back to front)

      It’s an undated document, from unknown to unknown, that’s unclassified and unlocatable.

      • Peterr says:

        172 sounds like it is obviously a Rumsfeld document.

        From the poetry that was a Rumsfeld press briefing:

        The Unknown
        As we know,
        There are known knowns.
        There are things we know we know.
        We also know
        There are known unknowns.
        That is to say
        We know there are some things
        We do not know.
        But there are also unknown unknowns,
        The ones we don’t know
        We don’t know.

        —Feb. 12, 2002, Department of Defense news briefing

        • Mary says:


          There are thought thougts
          There are unthought thoughts.
          There are thoughts we thought we thought.
          There is the unthinkable.
          There are thoughts about the unthinkable.
          There is thinking about the thoughts about the unthinkable
          There is the unthought unthinkable.

          Then there things we just want to forget.

      • joanneleon says:


        That is some document control system we’ve got there.

        Actually, I think the judge should just issue subpoenas for the homes and safe deposit boxes of those with a strong need to cover their asses with legal opinions Who knows what documents are to be found there.

  15. Garrett says:

    The blank pages need treated with some suspicion too. As in this:

    August 2, 2004
    * John Rizzo at CIA sends a letter to DOJ, describing proposed waterboarding of a detainee, presumably Hassan Ghul. (Source: DOJ letter, 8/6/2004)
    * CIA sends a memo to OLC, about interrogation techniques for a specific detainee. Three of the pages are blank. (Source: Vaughn index)

    The August 6 Levin to Rizzo letter is an especially hedged one about depending on the material facts claimed in the August 2 Rizzo to Levin. Three missing pages seems convenient.

  16. JimWhite says:

    I’m pretty sure the point has already been made in this thread, but this whole fiasco just underlines how important it is to get Dawn Johnsen confirmed. There needs to be a confirmed leader with competence and integrity to bring OLC into proper functioning.

    I’m gonna call Leahy’s office again tomorrow about the confirmation. It seems pointless to call Feinstein about the intelligence aspect of the story, maybe another call to Whitehouse’s office for that one…

    • Peterr says:

      Dick Durbin might be worth a call as well, given that Dawn’s nomination is now out of SJC jurisdiction. It’s all up to Harry Reid scheduling a vote, and getting Durbin to push him might be the best avenue for making that happen. Durbin’s seat on Judiciary makes him privy to the earlier debates there, and his post as Reid’s #2 positions him well to whisper in Harry’s ear to bring her vote to the floor.

    • bmaz says:

      At this juncture, the point looks suspiciously like she is not wanted confirmed yet. There are things to do, postures to set and policies to make before they let their little token liberal in the room. Need to set the paradigm before they let her loose in it.

    • 1boringoldman says:

      The author of this release is David Barron:

      Barack Obama has tapped Harvard law professor David Barron as principal deputy assistant attorney general in the Office of Legal Counsel, an obscure office sometimes called “the president’s law firm.” Barron has been a longtime critic of the Bush administration’s policies on domestic wiretapping and presidential powers—views he has shared in the Harvard Law Review and on Slate’s “Convictions” blog.

      It’s kind of hard to complain that he’s a “Bushie.” Who would be the person to initiate action to investigate documents that have gone missing? Would it be David Barron? the virtual appointee Dawn Johnsen? Eric

      • JimWhite says:

        My point isn’t that he’s a Bushie. It’s that he is “Acting Head” of OLC and therefore would not be expected to make the policy changes needed. I’ve served in an interim leading position an organization and I can tell you that acting or interim heads are seen as caretakers rather than policy setters.

  17. Mary says:

    You know, Bayh and Lugar have both said they would vote for her (the IN connection) and as I was surprised to find out, she’s married to Lee Hamilton’s nephew. I think the reason she isn’t in yet is because Obama doesn’t want her in yet.

    • Hmmm says:

      (At the not inconsiderable risk of calling yet another bmaz 11-D chess smackdown upon myself:) Been thinking the same thing myself. Either there is some inconvenient stuff that needs to be put away first, or else the opportune moment has not yet arrived.

        • fatster says:

          The devil’s in the details, too. Apologies for interrupting, and nothing will come of it, but it’s too outlandish to miss.

          Could ACORN defunding bill strike military-industrial complex?

          “Overly-broad language used by lawmakers intending to pull government funding for community organizing group ACORN may have the unintended effect of forcing the government to also pull funds from much of the military-industrial complex, a Tuesday report revealed.”


    • PJEvans says:

      I think the reason she isn’t in yet is because Obama Rahm doesn’t want her in yet.

      Fixed it for you. (We seem to have another unelected president, while the one we did elected doesn’t do the job well.)

  18. earlofhuntingdon says:

    This looks for all the world (and the judge could well agree) like intentionally bad lawyering on the part of Bush’s legal teams at CIA, DoD and DoJ with regard to keeping, tracking and controlling these documents and identifying which of them were responsive to the discovery at issue here (and in related cases).

    We’re also looking at intentionally or recklessly bad lawyering on the part of Obama’s legal teams in not pursuing information from Bush’s legal teams, when that information is presumably readily available, if not because these lawyers are still with the government, then because lawyers formerly with the government have a continuing professional obligation to assist their former client/employer regarding matters they handled.

    True, questions put to them (if only that could be in the medieval sense) might be met with a collective lack of memory that would shame Alberto Gonzales. But they should be made to say that under oath.

    The judge would then have a more complete record a) to conclude that the negligent, reckless or intentional conduct involved amounts to contempt or worse; b) to impose sanctions on the government as a consequence, which should include costs to the plaintiffs; and c) to send up to the court of appeals. This is the sort of case Obama, like the Bush DoJ, will fight to the Sup. Ct.

    • Jeff Kaye says:

      Hmm… Bad record keeping, files missing… where have I heard that before? Oh yes, remember all those missing or incomplete case files at Guantanamo? Or how they couldn’t find Hamdan’s 2002 Gitmo records? Or, to pick on another agency, how the FBI destroyed records it had on Walter Cronkite?

      This is a government that is out of control. It kills a hundred thousand or more in a trumpted up war/invasion in Iraq, and turns two million people into refugees. It tortures numberless individuals. It labels anyone who defies its rule a “terrorist”, yet it’s okay to have “collateral damage” killing who knows how many civilians, blown up because the U.S. was trying to strategically assassinate individuals by remote control missile.

      Anyone who is surprised by cover-up, dissembling, lies, and stonewalling by this government hasn’t been paying any attention to what has been going on. (And I don’t mean you, earlofhuntingdon, by any means… just a general comment.)

  19. rosalind says:

    OT: “Toyota wants California to repay it for training workers”

    Toyota Motor Corp. is closing California’s last automobile plant, but that isn’t keeping the factory from asking the state for $2 million in taxpayer money for recent training that made some of its workers better car builders…But critics are incensed, noting that there won’t be any more auto assembly plants left in the state where workers can make use of their training.

  20. skdadl says:

    Oh, and documents that were supposedly so sensitive that you couldn’t make a copy set have been trotted around from offices to offices without receipts and without tracking sheets. Oh, and some seem to have never made it back. And oh yeah – there also seem to be way over 150 documents that no one bothered to mention to the court in this ACLU proceeding (and you have to wonder about all the other proceedings)

    That was Mary @ 44, btw.

    I’m gobsmacked, by the history itself and then by the reconstruction of the history that EW and her irregulars have done here.

    Pull back the curtain on our elites, and what you find is incompetence or duplicity doing a cover-up for sheer brutality. Again and again, that is the bottom line.

  21. JimWhite says:

    Both Senator Durbin’s office and Senator Whitehouse’s offices seemed interested in my description of the problem of the missing documents from the OLC SCIF and how this could be leveraged into a new effort to get Dawn Johnsen confirmed and to start an Intelligence Committee investigation into the missing documents. It probably wouldn’t hurt for them to get a few more calls on this issue.

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