By Carrie Johnson
Washington Post Staff Writer
Saturday, February 27, 2010; A03
Senior Democratic lawmakers and watchdog groups demanded Friday that the Justice Department investigate the disappearance of e-mail messages written by Bush administration lawyers who drafted memos blessing harsh interrogation tactics, saying their absence cast doubt on an ethics report that cleared the lawyers of professional misconduct.
The lost e-mails cover a critical period in 2002 when Justice Department attorneys labored under heavy pressure on a memo that gave the CIA a green light to use simulated drowning, sleep deprivation and other interrogation techniques against al-Qaeda suspects.
"Why were these critical records deleted? Why were they kept from investigators?" Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said at a hearing Friday.
The dispute is being closely followed by rights advocates and legal experts because the e-mails could shed light on communications among Justice, the CIA and the White House about the development of policy on detainee interrogations, one of the Bush administration's most fraught legacies. A federal prosecutor has opened a criminal inquiry into alleged mistreatment of al-Qaeda suspects and the destruction of videotapes depicting some of the interrogations.
The focus on missing e-mails revives a controversy that for years dogged the Bush administration, which had fought a lawsuit seeking electronic messages from government officials. Only after President George W. Bush returned to Texas did his officials turn over the 22 million documents.
Citizens for Responsibility and Ethics in Washington, a government watchdog group, called on the Justice Department to launch a criminal inquiry into the recently disclosed disappearance of the e-mail messages, which could violate the Federal Records Act. The National Archives also asked why it had not been notified about the missing messages before the ethics report's release late last week.
Acting Deputy Attorney General Gary G. Grindler told lawmakers at the hearing that the ethics report "does not suggest there is anything nefarious" about the missing documents. Under questioning from Leahy, Grindler said he had directed a department administrator "to determine exactly what was going on with respect to the archiving of these e-mails."
"If they are retrievable, I will direct him to retrieve them," Grindler said.
Former Justice Department lawyer William Yeomans told an audience this week at a legal conference sponsored by the left-leaning Alliance for Justice that the missing e-mails represent "a gaping hole in the ethics investigation."
The department's Office of Professional Responsibility, an internal affairs unit, concluded that former department lawyers John C. Yoo and Jay S. Bybee had committed misconduct in preparation of the memos. But the OPR was overruled by Associate Deputy Attorney General David Margolis, a 40-year department veteran, who downgraded the recommendation and found that Yoo and Bybee had displayed poor judgment.
At the Senate hearing, Grindler told lawmakers that the Margolis ruling was made "without interference" by senior Justice Department officials and that no attorney general or deputy has ever overturned the conclusion of a senior career attorney in an ethics case.
Grindler said the department has "confidence in OPR's ability to investigate allegations of professional misconduct against department attorneys."
But analysts have criticized the ethics unit's pace of investigation, its reasoning and its conclusions. Michael Frisch, a former official at the D.C. Office of Bar Counsel, which polices ethics violations by lawyers, asserted that the OPR and Margolis did not take into account a relevant legal rule: whether lawyers who drafted the memos had counseled or assisted their client in criminal or fraudulent conduct.
Defense attorneys portrayed Yoo and Bybee as "vindicated" by the ethics process last week. Miguel Estrada, an attorney for Yoo, said in an e-mail that his client "was long gone when OPR commenced its investigation and has no basis for knowing whether emails are gone or why."
At Friday's hearing, Sen. Jeff Sessions (R-Ala.), said that "second-guessing good people who made decisions in tough times" could send a dangerous message to those considering government service.
House Judiciary Committee spokesman Jonathan Godfrey said the panel plans to schedule a hearing and "expects to hear directly" from Bybee and Yoo.