February 25, 2011

The Case of The Missing John Yoo Emails Is Solved – Or is it?

By Anne Weismann

In what looks to be the last chapter in this long-running saga, the National Archives and Records Administration (NARA) has closed the books on the missing John Yoo emails, accepting the explanation of the Department of Justice (DOJ) it did all it could to find missing emails. Recall that several years ago in a high-profit internal investigation of Mr. Yoo’s role in drafting the now-discredited torture memos, DOJ’s Office of Professional Responsibility (OPR) said it was hampered by the deletion of most of Mr. Yoo’s emails and the absence of most emails for Patrick Philbin, who like Mr. Yoo helped draft the memos for DOJ’s Office of Legal Counsel (OLC). That revelation triggered a demand from NARA that DOJ investigate and report back on whether an unauthorized destruction of records had occurred.

One year later DOJ reported to NARA it had located 15,151 “unique” emails and attachments, including emails from Mr. Yoo’s entire tenure at DOJ and emails for Mr. Philbin during the period he was working on the torture memos.  DOJ retrieved this new collection from backup tapes and, in Mr. Philbin’s case, in part from a DOJ server. This discovery is a far cry from the approximately 500 emails in Mr. Yoo’s email account when he departed that were available to the OPR investigators. 

This new cache would have remained hidden forever, but for DOJ’s failure to comply with its own policy on overwriting backup tapes, which are intended for disaster recovery purposes only, not long-term record storage. And we have NARA to thank for pushing DOJ to account for the missing emails.

So should we be happy that the case of the missing Yoo emails is now solved? Not exactly.  DOJ’s report back to NARA notes some emails were “lost” and others “could not be retrieved at all.” Further, given the seven years that have elapsed since Mr. Yoo and Mr. Philbin left OLC, DOJ could not determine “whether technical issues caused the loss of the emails or whether they were deleted by an individual.” In other words, it is too late to determine if Mr. Yoo intentionally deleted all the emails related to his work on the torture memos, leaving behind emails related primarily to his extra-curricular speaking and writing engagements.

Had DOJ aggressively pursued the missing emails when first informed of the situation years ago we might have an answer to this question. Had NARA done more to push agencies to preserve emails, we might now know Mr. Yoo’s full role in this sorry chapter of our history.

It probably is too late to do anything about the missing Yoo emails. But this is only one chapter in an ongoing story of what our government is doing and why. If we want to prevent a repeat of the Yoo scandal, agencies must start complying with their record keeping obligations for both paper and electronic records. And NARA must use the full extent of its powers to make sure that happens.

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