No Comment — February 26, 2010, 1:45 pm

Where are the Yoo and Philbin Emails?

This morning’s Senate Judiciary Committee hearing, convened by Chair Patrick Leahy (D-Vt.), quickly came to a focus on the critical evidence that disappeared into the recesses of the Justice Department as the Office of Professional Responsibility conducted its probe of torture memo writers John Yoo, Jay Bybee, and Steven Bradbury. “Where are Mr. Yoo’s emails?” Leahy pressed, politely but firmly, before the sole witness, Acting Deputy Attorney General Gary Grindler.

Grindler could not offer much of a response, but he clearly was anticipating the question. He had to start examining the matter from a purely technological perspective, Grindler said, taking the matter up preliminarily with the assistant attorney general for administration. He promised to revert when he had more information. Leahy suggested disappointment in the lack of detail in this answer. He was prepared to issue a subpoena for the missing emails, he clarified, but he hoped he wouldn’t have to. Leahy pointed to two provisions of the criminal code that preclude destruction of official records. If the records were in fact destroyed in the face of an investigation, he wanted to know, why was the Department not investigating this as a crime?

Here’s the key passage of the OPR report that set off the inquiry:

OLC initially provided us with a relatively small number of emails, files, and draft documents. After it became apparent, during the course of our review, that relevant documents were missing, we requested and were given direct access to the email and computer records of [Jennifer Koester Hardy—redacted in original], Yoo, Philbin, Bybee, and Goldsmith. However, we were told that most of Yoo’s records had been deleted and were not recoverable. Philbin’s email records from July 2002 through August 5, 2002 — the time period in which the Bybee Memo was completed and the Classified Bybee Memo (discussed below) was created — had also been deleted and were reportedly not recoverable.

What does it mean to say that the emails “had been deleted and were not recoverable”? I discussed this matter today with two federal criminal investigators with experience in recovering emails. Both suggested that the Judiciary Committee was well advised to be pressing the matter and that the Justice Department’s claims that the emails “were not recoverable” were “questionable.”

One, a Defense Department criminal investigator who requested anonymity because he is still on active duty, stated that emails that have been “deleted” can be routinely resurrected without much difficulty. Both the FBI and the DOD have the necessary technical expertise to do this. When a user hits the “delete” key, that merely assigns the space occupied by the email for use again—being overwritten. But in practice even computer disk drive space which has been overwritten numerous times can still generally be resurrected. He notes that emails will have numerous residences—on the computer of the sender, the recipient, individual copies; on the servers connecting these individuals; and on the archival systems. “This is why emails almost never ‘disappear.’ Only physical destruction of the hard drives on which all emails are stored would definitively evade recovery.” That would, of course, be powerful evidence of a conspiracy to obstruct the investigation, and would lead a prosecutor to infer that the evidence stored on the disk drive would have materially advanced the prosecution.

But the OPR report also noted that the emails of Jack Goldsmith, though deleted, were retrieved, and it goes on to discuss some of John Yoo’s emails.

At a minimum, it appears that the Justice Department did not exert itself in any way to retrieve these emails. Is this because seniors at Justice, like Mukasey, Filip, and Margolis, disapproved of the OPR investigation and wanted to hamper it? It may well be that OPR was left to its own resources and collected emails only to the extent that lawyers within the department elected to cooperate with it. We know that Attorney General Ashcroft set a benchmark within the Department by refusing such cooperation, for instance. It may all really be a question of political will, not technological ability.

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