One Torture Document That's Not Missing

| Mon Sep. 28, 2009 2:20 PM EDT

As I reported this morning, and Marcy Wheeler first noticed, the Obama administration has been unable to find at least ten documents relating to the Bush administration's torture, detention, and extraordinary rendition programs. From my story today:

In 2007, the Bush administration was fighting a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU), which was seeking records related to the deaths of detainees, their treatment, and the administration's rendition policies. CIA lawyers drew up a list [PDF] of 181 documents that they considered exempt from release. Some of these records, which were stored in a secure facility, were so sensitive that Justice Department lawyers lacked the clearances to handle them.

After President Obama took office, he issued a new FOIA policy, instructing executive branch agencies to "adopt a presumption in favor" of releasing information. The Obama Justice Department reprocessed the ACLU's earlier request under the new guidelines. But when they did so, department officials discovered that 10 documents listed on the index compiled by the Bush administration were nowhere to be found. The Justice Department noted this in a filing [PDF] by David Barron, an acting assistant attorney general, which was submitted last week as part of the ongoing ACLU case and first highlighted by Firedoglake blogger Marcy Wheeler. Barron acknowledged in the filing that even more documents could be missing, because "many" of the documents the Obama team did find were "not certain matches" to the ones on the Bush administration's list.

In her initial blog post on the subject, Marcy brought up the case of the sixth document on
both the Obama and Bush administration lists:

The 2007 Index refers to the document as a 46-page document, dated July 25, 2002, providing legal advice. Yesterday's Index refers to the document as a 59-page document, from and to the DOD, dated July 25, 2002, providing legal advice.

The page discrepancy, by itself is interesting (that is, if they don't have the document, then how do they know that the original index listed the page numbers wrong?).

And then there's the fact that this document is missing. Some of these documents discussed SERE techniques as torture. In the SASC report, both Jim Haynes and John Rizzo were very squirmy about discussing how DOD advice to to OLC for CIA's torture memos; if we had the document itself, we might be able to explain that definitively. And then there's the possibility that someone took notes on this document.

While I was reporting this story, I got an answer about the discrepancy between the two administrations' description of the same document. Tracy Schmaler, a Justice Department spokeswoman, told me that the Obama administration made a filing error. They found a document with the same date as "Document 6" and, although it had 59 pages instead of 46, added its information to their list. Once they realized it wasn't a match, they forgot to remove that information from the index. So, to be clear: a 59-page Department of Defense top-secret memo from July 25, 2002 does exist, and the DOJ has sent it to the Pentagon for processing. It will appear on a future index if the administration decides to withhold it. What the Obama DOJ didn't find was the 46-page memo "providing legal advice" that's described on the Bush administration's list. That's still missing.

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