The NYT disclosed DOJ emails related to internal DOJ Staff discussions on POW abuse. The emails contain a grammatical and spelling errors, suggesting, among other things:

(a) a second computer system was used to draft the emails;

(b) there exists a separate data filing system within DOJ which DOJ OPR/IG investigators and war crimes prosecutors may not have reviewed; and

(c) this is a possible line of evidence for future FOIA requests related to this alleged war crimes evidence.

Overview

 

Comey's DOJ OLC Emails Point To Separate DOJ OLC File Sharing

 

TPMM references the DOJ OLC emails disclosed through the NYT; and Dan Froomkin covers some of the background on the disclosed DOJ OLC emails.

 

However, we're looking at something else within the files: The relationship between grammar and spelling errors within the DOJ OLC emails and the electronic location where the text was adjusted before sent via email.

 

The grammar-spelling issues suggests there's a separate system to review documents before sending them via email. This means there could be a second file sharing system which contains more information than what has been disclosed related to allegations of war crimes, POW abuse, and other violations of the laws of war.

 

This information may be of interest to researchers with TPMM, Members of Congress, or war crimes prosecutors. Our analysis of the disclosed DOJ OLC emails in the NYT points to a separate file sharing system, unrelated to the DoJ emails. 

 

 

Details

 

Page 2 of 7 of the Comey's newly disclosed DOJ OLC email includes the following text, which if you read closely, will not sound correct:

 

Comey: "[T]he December 30 opinion had, for the first time, concluded was a separate category that needed to be considered in decided [stet] whether something amounted to torture."

 

The key word in the email is "decided" and it appears the text was originally written in another platform, and automatically changed with a grammar-auto-checker from something that was intended to be "deciding". (More about this conclusion later.)

 

Also, on page 5 of 7 (Comey to Rosenberg), there is a spelling error: "Departmwnt" [stet], and another on the last line: "undrgrid" [stet]

The original Comey-error is actually: undrgird. Note, by contrast, undrgrid is associated with DOJ PGP software security:

undrgrid PGP DOJ

 It's possible Comey's misspelling points to a software word associated with DOJ-related encoding.

Analysis

 

The question is whether this is in the original, and sent without corrected spelling; or whether this was scanned, and incorrectly transcribed. The second example on page 5 of 7 suggests that if the spell checker was in the DOJ email system it wasn't working. That doesn't make sense. Rather, it appears Comey spell checked one message using a word processor; and another email didn't get the same attention.

 

Another misspelled word within the email is on page 7 of 7:

 

Comey: "It would land on the President eventually adn [stet, should be "and"] it simply could not be that the Principles would be willfully blind."

 

One question is whether the grammar checker is the only means to duplicate this error; or, whether, as is also possible, the DOJ email system includes a drop-down-menu to choose a correct spelling, and the author incorrectly chose "decided".

 

Either way, there's something different between how the emails were spell checked bewteen the emails, pointing to a change in how Comey was preparing his emails before sending them.

 

Here is a summary of the misspellings. We would have to ask whether there are files within the DOJ document file system for these three documents:

 

Inconsistent Spelling Errors

 

Apr 27: Decided, should be "deciding"

Apr 28: Departwent, undrgird

May 31: adn [spaces added]

 

It would not be surprising to find that only some of the DOJ emails trace to a similar copy within the DOJ document file systems. Apr 27 automatically changed the word, rather than leave the misspelling; and April 28 and May 31 leave the misspelled words unchanged. It is possible that the email sent April 27 had a grammar checker within a separate file; while the Apr 28 and May 31 emails did not rely on an external file.

 

It's more likely there was an auto-checker using a word-processing document, not a simple spelling error within the DOJ email system. The spelling error would require someone to look at the misspelled word, then choose the wrong word. But that doesn't make sense: They would be choosing a word that didn't make sense despite the attention on the word.

 

It's more likely the program automatically changed the misspelled word, and the author did not go back to read the text closely.

 

Textual Support

 

This is important because later, on the same page, we find the following text: "I then read a draft and agreed with his concerns" and "I got the most recent draft of the second opinion"

 

This suggests that the "draft" is attached not to the email, but to a separate file-sharing system, distinct from the emails. Not only are these emails summaries of the separate files, but the files themselves might be referenced-searchable by looking for key text from these emails.

 

Other Evidence

 

When we read, "I made some notes on the document and separately on small yellow note paper" this suggests that there are contemporaneous notes; and that the file-sharing system was linked to a word processing platform which included versions of the changed files.

 

It doesn't make sense that he would make the point to mention making notes "on the document" and "on small yellow note paper" if they were both written; rather, it appears they're making comments electronically on one (the file), and manually on another (the paper).

 

However, the opposite view of this is the key word "separately on small yellow paper", suggesting that he made written comments on the document; and separate written comments on paper to prepare for his briefing with the AG. However, if this is true, we need to understand why he did not make a copy of the written comments on the file, rather than re-write the notes, or make a second set of notes. We need to find out if there were document-sharing restrictions on the file after it was printed; and was the document not sent electronically.

 

This likely means going backward and forward on these word processing files - not the emails - we can get an idea of which specific people were making which changes and when on the file before the information was discussed via email.

 

On the issue of Jim Comey mentioning, "fact gathering" consider the timeline of the Addington-Rizzo (CIA) visit to Guantanamo, as disclosed in (a) the DoD emails on military analysts, where WH public affairs personnel were named; (b) the disclosed files related to Rice as provided to the Senate Judiciary Committee; and (c) the DoD-NAVY emails indirectly mentioning the Law of Wars program, 5100.77 related to POW treatment at Guantanamo

 

We offer this observation only for the purposes of suggesting that there are likely other subtle issues within the NYT-disclosed email which may point to other items of interest to the TPM community.

  

Discussion

 

These separate file systems, if linked with the disclosed DOJ OLC emails, could be admissible as an exception to the rules of evidence: The information required to locate these still-not-disclosed files appears to be contained within the disclosed DOJ OLC emails. This appears to fall under rules of evidence exceptions related to inadvertent disclosures.

 

The question for TPM: What is the plan to request through the FOIA process to release these DOJ OLC files which these DOJ OLC emails have indirectly referenced?

 

Congress and war crimes prosecutors have some parsing to do. They must review whether the DOJ OLC  emails are the complete response to "all" information on this topic; or whether the DOJ has inadequately reviewed the DOJ document filing systems, unrelated to the DOJ OLC emails, which include separate DOJ files.

 

Judgment

 

We conclude the original email was crafted not in the DOJ email system, but a separate file system; and that this file, outside the DOJ email system, has been or should have been independently saved. The question is not narrowly what other emails exist related to this email, but what specific file structures - outside the email system - can be linked with this disclosure within the DOJ email.

 

Recommendation

 

We recommend interest researchers specifically ask for the file names of the word-document files used to craft this specific memo; then ask for similar files created on or near this date related to similar issues.

 

There is also a classified email system - unrelated to the DOJ email - which is an instant messaging system.  Recall, the 9-11 memos disclose the classified information transfer systems related to national security issues. This is not isolated to IntelLink, but included in 2001 real time intelligence information about unfolding events connected with NORAD and the FAA.

 

Once we find the time date-group of this separate file which contains the original "deciding" - but which was written before the email was sent, April 27, 2005 -- we'll get an idea of which time-windows to examine other files also possible sent within the classified instant messaging system, and may have included drafts of the attached emails.

 

Other than emails, it's unclear whether the DOJ OPR auditors-investigators reviewed the classified instant messaging systems or file sharing programs for other DOJ work products, files, and memos which relate to this topic.

 

Questions For Analysts To Review

 

What was the method DOJ OLC's Comey used to review his files before he sent them via email?

 

Is there a reason Comey did not uniformly spell/grammar-check his documents?

 

When did Comey change how he reviewed his files before sending them via email; is there a reason Comey appears to use one type of word processing file sharing system, but then changed; how do these changes square with the JCON software upgrades within DOJ?

 

Which separate files, unrelated to the DOJ emails, include the similar spelling errors?

 

Does the DOJ OLC email system allow uses to choose whether they want to include automatic grammar checkers?

 

Where are the DoJ files (other than emails), which specifically include the same misspellings?

 

Has the Congress been given all the information it needs about the full documentation related to these issues as (appear to be) still archived outside the DOJ emails, and included within the DOJ file sharing system?

What type of access do Members of Congress or their legal counsel have to these file sharing systems within DOJ OLC; if access is permitted on sensitive issues, when does DOJ plan to disclose the access times Members of Congress or their staff had of these DOJ OLC files, not just the emails?

 

Is it possible for someone on the Congressional staff to review a copy of a DOJ OLC memo without receiving an email, but link to that information or document via an instant message or information sent via Intel Link or other Executive- Legislative system; or one that is housed on a contractor's site or a third party overseas?