Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department's and the Obama administration's unwillingness to further delve into the previous administration's alleged crimes.
She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA's destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.
"The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA," Sloan's letter to Holder said.
Indeed, the DOJ's web site said emails are federal records if it:
- Documents agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
- Provides comments on or objections to the language on drafts of policy statements or action plans
- Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities
The DOJ rules for preserving records also said"the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."
Sloan, in her letter to Holder, said, "the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws ... Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they - or others seeking to hide the truth - may have broken the law by deleting their emails."
Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.
Under the terms of the agreement, 94 days of missing emails will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney's Energy Task Force meetings.
The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney's energy task force meetings will not be known for years, as the documents will not be immediately available for public view.
Congressional Hearing
The destruction of Yoo's and Philbin's email was one of the first issues raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.
"Have [the emails] disappeared? If they have, and if they have been destroyed, either the Yoo emails, the Philbin emails, will the [Justice Department] make ultimate determination whether the destruction was criminal, in violation of the criminal statutes, which seem fairly clear?"Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler.
Grindler testified that he still needs to gather information from the "information technology experts, including all of the questions of what occurred, what the policies are, and what the archive system is. And at that point I'll be in a position to evaluate whether anything additional needs to be done."
Grindler said the report does not "suggest there was anything nefarious" about the fact that Yoo and Philbin's emails were not turned over to OPR investigatiors and he noted that the report "does include a review of some of Mr. Yoo's emails."
But Leahy said the episode was cause for concern given that other Bush administration officials were found to have destroyed emails in violation of the Presidential Records Act during time frames that coincided with the lead up to the invasion of Iraq, the leak of Plame's covert status and other scandals that engulfed the Bush White House.
"All I'm saying is that the report doesn't have a complete lack of his e-mails,"Grindler said. But as soon as I learn the facts regarding this, I will provide appropriate information back to this committee...If they are retrievable, I will direct [technical staff] to retrieve them."
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