MANHATTAN (CN) - Nearly three months after the CIA received preliminary approval on a plan for destroying the emails of "non-senior" staff, open-government groups have raised alarm about a document so seemingly innocuous it almost escaped notice.
When she gave the plan her stamp of approval on Aug. 18, 2014, National Archives and Records Administration (NARA) appraiser Meredith Scheiber asserted that the emails that the CIA wants to kill have "little or no research value."
Her five-page appraisal describes the emails as "routine," "administrative," "transitory" and "personal" in nature. Scheiber also noted her trust that the agency's good faith would prevent putting "legal rights and accountability" at risk.
"It is deeply embedded in agency culture for employees to maintain access to their email for their entire career and to file email in appropriate files, corresponding to record schedule items, per agency policy," Scheiber wrote.
Only the emails of exiting staffers would be destroyed, and the 22 top officials would be subject to prior preservation rules, the CIA assured the archivist.
CIA spokesman Ryan Trapani contended in a phone interview that the measure does nothing more than put the agency in compliance with NARA's Capstone program to replace print-and-file protocols for emails with an "electronic system of mass preservation."
"It would result in the preservation of more emails, not less," he said.
But prominent transparency advocate Steven Aftergood, who spotted the proposal on the Federal Register in September, contends that the proposal would give the agency greater power to destroy embarrassing documents.
Aftergood, who directs the Project on Government Secrecy for the Federation of American Scientists, blogged about it on his publication Secrecy News and lodged his objection to the National Archives a couple days later.
"It was easy to miss," Aftergood said in an email interview. "But its implications are potentially vast."
From wiping records related to medical experiments on U.S. veterans to losing Guantanamo interrogation videos, the "CIA has an unfortunate history of destroying valuable records, and NARA has had a hard time imposing discipline on the agency," Aftergood remarked.
"But I think there is a chance that may change," he added.
Publication in the Federal Register marked the beginning of a two-month public-comment window, and more than a dozen well-known advocacy groups, Guantanamo lawyers and law professors have followed Aftergood's lead in recent weeks.
Katherine Hawkins, who helped lead one coalition for OpenTheGovernment.org, commented in a phone interview that the National Archives might not have expected such a groundswell of opposition.
"This is a very obscure thing," Hawkins said. "Normally they don't get any comment on these things."
The American Civil Liberties Union, American Library Association and Human Rights Watch are just three of the 17 groups that signed a letter on Monday urging the archivist to reserve course.
"We believe the proposal could be interpreted to allow the destruction of crucial documentary evidence regarding the CIA's activities before Congress, the public, or the courts have any opportunity to access them," the 15-page letter states. "It calls for preservation of too few officials' emails, for too short a period. It leaves too many key terms undefined, and relies too heavily on the CIA's good faith instead of NARA's own careful appraisal of CIA recordkeeping."
The emails also could be relevant to the agency's "rendition, detention and torture programs," a subject of "intense public interest" with the "public release of the forthcoming Senate report," according to the letter.
Bogged down with repeated delay and censorship, a summary of the Senate Select Committee on Intelligence's more-than-6,000-page report of the CIA's torture program is expected to be released this year.
Attorney James Connell has been seeking information on this program for his client Ammar al Baluchi, an alleged plotter in the Sept. 11, 2001, attacks and reported muse for the character "Ammar" in the film "Zero Dark Thirty."
The film controversially showed "Ammar" being tortured, and later giving up information that helped find Osama bin Laden.
While senators and human-rights advocates deny that torture paved the road to the bin Laden raid, Connell says that the part about his client's torture is true. He hopes to find documentation of it in the emails.
"Men who were detained, rendered and tortured by officials in the CIA RDI program, then rendered to Guantanamo Bay, Cuba, now face capital charges in U.S. military commissions," Connell's letter to Hawkins, dated Thursday, states. "Their treatment at the hands of CIA officials is an extremely important issue in this litigation."
If convicted, al-Baluchi, who was born Ali Abdul Aziz Ali, faces the death penalty.
Calling these concerns "unfounded," CIA spokesman Trapani added in an email: "There is no connection between Connell's claims and CIA's compliance with NARA policy."
The Government Accountability Office "concurred with CIA's proposal for implementing the NARA recordkeeping policy," the spokesman added.
But City University of New York Professor Douglas Cox shares Connell's skepticism.
In a letter he sent NARA on Oct. 26, Cox, one of the law professors chronicling the disclosure of 92 interrogation videos of Abu Zubaydah and other Guantanamo detainees, recounted the CIA's "infamous destruction" of the tapes in 2005.
The CIA justified destroying the tapes nearly a decade ago based on "its inexplicable assertion that the tapes were not 'records,'" Cox wrote.
Even today, the CIA continues to assert that only "nonrecords" are to be disposed, he noted.
"The archivist must not allow this history to repeat itself," he urged in the letter.
NARA director Margaret Hawkins did not respond to a request for comment.
In a phone interview, Cox said he agreed in principle with the idea of moving CIA email records from a print-and-file system to an electronic version. NARA should tread with greater care, however, given the agency's history, Cox added.
The professor noted in an email that the current debate over the CIA's proposed policy marks an improvement over the recent past.
"Public notice was given, and the proposed schedule - as imperfect and problematic as it is - has been disclosed for public review and public comments have been forthcoming," Cox noted. "This has not always been the case - for a long time the CIA's schedules were themselves classified. NARA deserves credit for this and for pushing CIA for greater transparency about its record keeping, but there is still a long way to go."
The public-comment period is expected to continue until at least Nov. 17.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.