[Office of Legal Counsel] 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 REDACTED, Yoo, Philbin, Bybee, and Goldsmith. However, we were told that most of Yoo's records had been deleted and were not recoverable. [Former Deputy AAG] 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.
Yesterday, the New York Times, in an editorial on the report, wrote:
The attorney general, Eric Holder Jr., should expand the investigation into "rogue" interrogators he initiated last year to include officials responsible for facilitating torture. While he is at it, Mr. Holder should assign someone to look into the disappearance of Mr. Yoo's e-mails.
The Times was joined by the good-government group Citizens for Responsibility and Ethics, which wrote a letter to Attorney General Eric Holder pointing out that "the knowing failure to preserve and restore email records violates the Federal Records Act (FRA) and may be subject to criminal sanctions." CREW called for an investigation to determine not only whether Yoo and Philbin violated the FRA, "but also whether they obstructed justice and violated other criminal laws."
The Justice Department did not immediately respond to a request for comment.
But we'll be looking into the question of what it takes to make DOJ emails unrecoverable, so stay tuned.