A Senate committee chairman told the Justice Department on Friday to hunt for the missing e-mails of an attorney who provided legal justification for the Bush administration's harsh interrogation of terror suspects.
Judiciary Chairman Patrick Leahy's demand came at a committee hearing where the Justice Department's No. 2 official defended his department's investigation of the legal advice by the former Justice attorney, John Yoo, and his boss, Jay Bybee.
The missing e-mails raise serious questions about whether the probe had all relevant information, Leahy said.
The inquiry concluded the two lawyers showed poor judgment and provided significantly flawed advice, but it ruled they committed no misconduct and stopped short of referring their actions to state bar authorities for possible discipline. However, Justice's internal investigators said their probe was hampered by the loss of Yoo's e-mail records, and those of another attorney.
Bybee is now a judge at the U.S. Court of Appeals for the 9th Circuit in San Francisco. Yoo is a University of California law professor.
The legal views of Bybee and Yoo "were intended to provide a 'golden shield' to commit torture and get away with it," said Leahy, D-Vt. He added that their legal advice in 2002 in response to a CIA proposal was "designed to achieve an end."
In rebuttal, the panel's ranking Republican, Sen. Jeff Sessions of Alabama, said Bybee and Yoo were part of the Bush administration's government-wide effort that "had one unifying goal: Preventing another attack on this country."
Justice's internal investigators revealed in their report that they had examined the e-mails of most of the lawyers involved in the advice on interrogation but "most of Yoo's e-mail records had been deleted and were not recoverable." Also deleted and unrecoverable were e-mails of Justice lawyer Patrick Philbin, who raised concerns about the legal advice with both Yoo and Bybee, for a key period in 2002 when two of the legal memos were written.
"The report does not suggest anything nefarious" happened to the missing e-mails, acting Deputy Attorney General Gary Grindler told the committee.
"That's not my question," Leahy said, interrupting Grindler.
Federal law requires all executive departments to preserve the material they create, including e-mails.
Grindler said he has met with a department information technology specialist and is waiting to hear whether Yoo's e-mails are retrievable.
The Justice Department decided not to refer the report to state bar authorities, but that didn't stop Rep. Jerrold Nadler, D-N.Y.
"The relevant officials in the states where attorneys Yoo and Bybee are licensed to practice law have authority to determine whether further investigation or disciplinary action is warranted," Nadler said. "These states do not need a referral from the Department of Justice in order to interpret and enforce the standards of professional responsibility and ethics against their members."
"For that reason, I am forwarding to the relevant state bars copies of the OPR reports, and other materials, and asking that they review the documents to determine whether, under their laws, rules and procedures, any further action is warranted," added Nadler, who chairs the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.
Critics on both sides
Defending Justice's decisions about Bybee and Yoo, Grindler said, "Although some may disagree with our conclusions, we are confident that the department followed an appropriate process."
The department's Office of Professional Responsibility concluded that Bybee and Yoo had committed professional misconduct, a conclusion that could have cost them their law licenses. But top career lawyer David Margolis at the department overruled the office.
"Mr. Margolis decided this matter without interference from the attorney general, the deputy attorney general or any other department official, and his decision represents the department's final action," Grindler told the committee. "No attorney general or deputy attorney general has ever overturned the conclusion of the career official in such circumstances."
The Justice investigation has drawn fire from both liberals, who wanted harsher action, and conservatives, who were upset there was any criticism of the pair at all.