By Jason Leopold
Wed, 12 Nov 2008 13:03:00
(The Intelligence Daily) -- A U.S. District Court judge ruled Monday that the National Security Archive can move to force the White House to recover millions of Bush administration e-mails lost or destroyed between 2003 and 2005.
Judge Henry H. Kennedy, a Clinton appointee, rejected the Bush administration's claim that federal courts lacked the authority to require the White House to recover the e-mails. Kennedy ruled that the Federal Records Act permits a private plaintiff to file a complaint requiring the head of the EOP or the Archivist of the United States to notify Congress or ask the Attorney General to initiate action to recover destroyed or missing e-mail records.
“This ruling gives the public a clear voice in demanding preservation of our nation's history, even when that history is created at the White House,” explained Sheila Shadmand, an attorney at Jones Day who is representing the Archive. “We can now give positive action to that voice and protect these records before they get carted off or destroyed as the current administration packs its bags to leave. In that sense, the ruling itself is as historical as the records it will protect.”
Meredith Fuchs, general counsel for the Archive, said Monday's court ruling represents "a major victory for the public interest in accountability at the White House."
"Through this lawsuit we have preserved over 65,000 computer backup tapes," Fuchs said. "This decision means those tapes will survive the end of the Bush Administration so that Congress, the courts, and eventually the public will be able to learn about the decision-making that took place over the last 8 years.”
George Washington University's National Security Archive sued the Executive Office of the President and the National Archives and Records Administration in September 2007 alleging more than five million White House e-mails were deleted from White House computers between March 2003 and October 2005.
The government watchdog group Citizens for Responsibility and Ethics in Washington also sued to recover the missing e-mails. CREW's complaint was consolidated with the Archive's lawsuit. A chronology of the litigation is available here.
The email controversy first surfaced in January 2006. At the time, Patrick Fitzgerald, the special prosecutor appointed to investigate the leak of covert CIA operative Valerie Plame Wilson, said in a court filing that he "learned that not all email of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."
In October of 2005, the Office of Administration discovered that White House e-mails had not been archived in accordance with the Presidential Records Act. The Office of Administration had briefed former White House Counsel Harriet Miers about the lost e-mails.
Miers is said to have immediately informed Fitzgerald about the issue. Fitzgerald had been investigating White House officials’ role in the Plame leak and subpoenaed White House e-mails sent in 2003.
An internal investigation by officials in the Office of Administration concluded that e-mails from the office of Vice President Dick Cheney between Sept. 30, 2003, and Oct. 6, 2003 were lost and unrecoverable.
That was the week when the Justice Department launched an investigation into the Plame leak and set a deadline for Bush administration officials to turn over documents and e-mails containing any reference to Plame Wilson or her husband, former Ambassador Joseph Wilson. The timeframe also coincided with litigation surrounding the release of documentsr related to Cheney's National Energy Task Force meetings.
Additionally, Office of Administration staffers said there were at least 400 other days between March 2003 and October 2005 when e-mails could not be located in either Cheney’s office or the Executive Office of the President.
White House Chief Information Officer Teresa Payton and press secretary Dana Perino have blamed the loss of the e-mails on the administration’s transition from Lotus Notes to Microsoft Outlook.
Earlier this year, Payton filed an affidavit with U.S. Magistrate John Facciaola stating that every three years the White House destroyed its hard drives “in order to run updated software, reduce ongoing maintenance, and enhance security assurance.”
“When workstations are at the end of their lifecycle and retired… under the refresh program, the hard drives are generally sent offsite to another government entity for physical destruction in accordance with Department of Defense guidelines,” states Payton’s sworn affidavit.
In March, Payton also revealed that until October 2003 the White House had “recycled” its computer back-up tapes, which made it much more difficult to retrieve e-mails.
In August, CREW revealed in a court filing that the Bush administration may have hired an outside contractor to search individual computers for tens of thousands of missing e-mails that disappeared between 2003 and 2005 and instructed information technology experts conducting the search apparently have been told not to try and locate hundreds of thousands of missing e-mails from March 2003 to September 2003, a crucial timeframe that encompasses the start of the Iraq war, and the leak of covert CIA operative Valerie Plame Wilson.
“CREW has learned that the White House has now completed its analysis of the missing email problem and confirmed that email is missing for as many as 225 days,” said a statement posted on CREW’s website. “In addition, the White House is about to begin selecting, or has already selected, a contractor to restore the missing email, although it is CREW's understanding that the White House does not intend to use backup tapes predating October 2003.
In April 2007, CREW published a report entitled, "WITHOUT A TRACE: The Missing White House Emails and Violations of the Presidential Records Act," outlining the widespread failures by the White House to retain its emails. In its report, CREW said that "although [then-] White House counsel [Harriet Miers] was provided a detailed briefing of this analysis, and a plan of action to recover the missing email was developed, the plan has never been executed."
The Government Accountability Office issued a report in June that said four federal agencies it had monitored do not have a system in place to preserve emails. The agencies the GAO reviewed simply rely print-and-file systems to preserve their email records, meaning the documents can easily be destroyed or lost.
But Susan Cooper, a spokeswoman for the National Archives, said in an interview in July that her agency does not have the power to enforce the White House to comply with the Presidential Records Act.
“One thing you have to remember the key thing to remember about presidential records is that it doesn’t become ours until the end of the administration,” Cooper said. “The National Archives does not have any say or legal input until the end of a president’s term. It’s up to the president to decide how he manages his records. However, federal records are a different story. We have input into that immediately. If we believe a federal agency is violating the Federal Records Act we will write a letter to the agency and ask for an explanation and if necessary we will refer the case to the Justice Department.”
In May 2007, Allen Weinstein, Archivist of the United States, said the National Archives wrote a letter to the White House when reports about the extent of the missing emails began to surface.
“Because the [Executive Office of the Presdient] email system contains records governed under both the Presidential Records Act and Federal Records Act, on May 6,2007, the National Archives sent a standard letter to [ Alan R. Swendiman] the Director of the Office of Administration requesting a report on the allegations of unauthorized destruction of Federal records,” Weinstein told the House Oversight Committee in sworn testimony last month.
“While we have not received a written reply to the May 6 letter, we have been diligent in requesting an update on the status of the White House's review of these allegations and the possibility of missing Federal and Presidential emails, the White House has responded regularly that its review is still continuing.
"Furthermore, we have made our views clear, both to the White House and to this Committee, that, in the event emails are determined to be missing, it would be the responsibility of the White House to locate and restore all the emails, probably from the backup tapes, and that such a project needs to begin as soon as possible.”
Wed, 12 Nov 2008 13:03:00
(The Intelligence Daily) -- A U.S. District Court judge ruled Monday that the National Security Archive can move to force the White House to recover millions of Bush administration e-mails lost or destroyed between 2003 and 2005.
Judge Henry H. Kennedy, a Clinton appointee, rejected the Bush administration's claim that federal courts lacked the authority to require the White House to recover the e-mails. Kennedy ruled that the Federal Records Act permits a private plaintiff to file a complaint requiring the head of the EOP or the Archivist of the United States to notify Congress or ask the Attorney General to initiate action to recover destroyed or missing e-mail records.
“This ruling gives the public a clear voice in demanding preservation of our nation's history, even when that history is created at the White House,” explained Sheila Shadmand, an attorney at Jones Day who is representing the Archive. “We can now give positive action to that voice and protect these records before they get carted off or destroyed as the current administration packs its bags to leave. In that sense, the ruling itself is as historical as the records it will protect.”
Meredith Fuchs, general counsel for the Archive, said Monday's court ruling represents "a major victory for the public interest in accountability at the White House."
"Through this lawsuit we have preserved over 65,000 computer backup tapes," Fuchs said. "This decision means those tapes will survive the end of the Bush Administration so that Congress, the courts, and eventually the public will be able to learn about the decision-making that took place over the last 8 years.”
George Washington University's National Security Archive sued the Executive Office of the President and the National Archives and Records Administration in September 2007 alleging more than five million White House e-mails were deleted from White House computers between March 2003 and October 2005.
The government watchdog group Citizens for Responsibility and Ethics in Washington also sued to recover the missing e-mails. CREW's complaint was consolidated with the Archive's lawsuit. A chronology of the litigation is available here.
The email controversy first surfaced in January 2006. At the time, Patrick Fitzgerald, the special prosecutor appointed to investigate the leak of covert CIA operative Valerie Plame Wilson, said in a court filing that he "learned that not all email of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."
In October of 2005, the Office of Administration discovered that White House e-mails had not been archived in accordance with the Presidential Records Act. The Office of Administration had briefed former White House Counsel Harriet Miers about the lost e-mails.
Miers is said to have immediately informed Fitzgerald about the issue. Fitzgerald had been investigating White House officials’ role in the Plame leak and subpoenaed White House e-mails sent in 2003.
An internal investigation by officials in the Office of Administration concluded that e-mails from the office of Vice President Dick Cheney between Sept. 30, 2003, and Oct. 6, 2003 were lost and unrecoverable.
That was the week when the Justice Department launched an investigation into the Plame leak and set a deadline for Bush administration officials to turn over documents and e-mails containing any reference to Plame Wilson or her husband, former Ambassador Joseph Wilson. The timeframe also coincided with litigation surrounding the release of documentsr related to Cheney's National Energy Task Force meetings.
Additionally, Office of Administration staffers said there were at least 400 other days between March 2003 and October 2005 when e-mails could not be located in either Cheney’s office or the Executive Office of the President.
White House Chief Information Officer Teresa Payton and press secretary Dana Perino have blamed the loss of the e-mails on the administration’s transition from Lotus Notes to Microsoft Outlook.
Earlier this year, Payton filed an affidavit with U.S. Magistrate John Facciaola stating that every three years the White House destroyed its hard drives “in order to run updated software, reduce ongoing maintenance, and enhance security assurance.”
“When workstations are at the end of their lifecycle and retired… under the refresh program, the hard drives are generally sent offsite to another government entity for physical destruction in accordance with Department of Defense guidelines,” states Payton’s sworn affidavit.
In March, Payton also revealed that until October 2003 the White House had “recycled” its computer back-up tapes, which made it much more difficult to retrieve e-mails.
In August, CREW revealed in a court filing that the Bush administration may have hired an outside contractor to search individual computers for tens of thousands of missing e-mails that disappeared between 2003 and 2005 and instructed information technology experts conducting the search apparently have been told not to try and locate hundreds of thousands of missing e-mails from March 2003 to September 2003, a crucial timeframe that encompasses the start of the Iraq war, and the leak of covert CIA operative Valerie Plame Wilson.
“CREW has learned that the White House has now completed its analysis of the missing email problem and confirmed that email is missing for as many as 225 days,” said a statement posted on CREW’s website. “In addition, the White House is about to begin selecting, or has already selected, a contractor to restore the missing email, although it is CREW's understanding that the White House does not intend to use backup tapes predating October 2003.
In April 2007, CREW published a report entitled, "WITHOUT A TRACE: The Missing White House Emails and Violations of the Presidential Records Act," outlining the widespread failures by the White House to retain its emails. In its report, CREW said that "although [then-] White House counsel [Harriet Miers] was provided a detailed briefing of this analysis, and a plan of action to recover the missing email was developed, the plan has never been executed."
The Government Accountability Office issued a report in June that said four federal agencies it had monitored do not have a system in place to preserve emails. The agencies the GAO reviewed simply rely print-and-file systems to preserve their email records, meaning the documents can easily be destroyed or lost.
But Susan Cooper, a spokeswoman for the National Archives, said in an interview in July that her agency does not have the power to enforce the White House to comply with the Presidential Records Act.
“One thing you have to remember the key thing to remember about presidential records is that it doesn’t become ours until the end of the administration,” Cooper said. “The National Archives does not have any say or legal input until the end of a president’s term. It’s up to the president to decide how he manages his records. However, federal records are a different story. We have input into that immediately. If we believe a federal agency is violating the Federal Records Act we will write a letter to the agency and ask for an explanation and if necessary we will refer the case to the Justice Department.”
In May 2007, Allen Weinstein, Archivist of the United States, said the National Archives wrote a letter to the White House when reports about the extent of the missing emails began to surface.
“Because the [Executive Office of the Presdient] email system contains records governed under both the Presidential Records Act and Federal Records Act, on May 6,2007, the National Archives sent a standard letter to [ Alan R. Swendiman] the Director of the Office of Administration requesting a report on the allegations of unauthorized destruction of Federal records,” Weinstein told the House Oversight Committee in sworn testimony last month.
“While we have not received a written reply to the May 6 letter, we have been diligent in requesting an update on the status of the White House's review of these allegations and the possibility of missing Federal and Presidential emails, the White House has responded regularly that its review is still continuing.
"Furthermore, we have made our views clear, both to the White House and to this Committee, that, in the event emails are determined to be missing, it would be the responsibility of the White House to locate and restore all the emails, probably from the backup tapes, and that such a project needs to begin as soon as possible.”
Today, Magistrate Judge John M. Facciola of the U.S. District Court ordered the White House to once and for all provide "precise information" about its e-mail system.
Responding to Armstrong v. Executive Office of the President, Clinton administration officials enacted more stringent e-mail policies. Despite these efforts, a pair of server malfunctions early on in the Clinton presidency 
Download 111307 - NPR - White House TRO.mp3
and while the congress sits on it’s collective ass, the executive (that includes you, dick) is destroying the evidence sought.
A day late and a dollar short….
“At stake is the right of future generations to look back and understand the role of White House officials in critical events, said Melanie Sloan, CREW’s executive director.”
Actually what is at stake is bringing their criminal conduct to light right NOW. But of course there is no one left who will do that. The last uncorrupted person in Washington, please turn off the lights when you leave.
The 18 minute gap on the Nixon tapes kinda pales when compared to this wholesale destruction of records.
Wasn’t it Cheney who told Nixon to put the tapes on the White House lawn and burn them? How many more Executive Building “fires” will it take to keep the criminal corruption of this administration covered up–???
Thanks CREW — !!!
What’s the issue? Throw the bums in jail.
Doesnt make any difference, gone or archived they will be wrapped up in “executive privilege” never to be seen for at least 50 years - long after our history books glorify the reign of “George the lesser”.
Let’s look at the picture. Destroyed CIA tapes recording torture, deletion of millions of emails, more than 900 documented lies misleading the United States into illegal occupation of another country, and a host of other documented and known falsifications. It does not take a genius to figure out what is happening here. These are criminal acts. Since the Congress will not step up, and the DoJ will not do anything, it is up to the people of this country to hold these criminals in the White House and Congress accountable. We need to set up our own tribunals that bypass the courts, the Congress, and the Unitary Executive to try and convict these criminals. It is the only way we will be able to change things in this country since our government basically has abandoned us (treason??). Are we not entitled to form another government to replace this corrupt bunch of traitors and opportunists who have unlawfully and willingly abrogated their power and duties? Perhaps we need to draft a new Declaration of Independence? It seems to me that this is our only option if we want to make meaningful change in this country.
Where is Henry Waxman and his crack investigative committee on this one? And if investigated, what will he DO with the findings? Anything? Maybe a press release? Maybe an interview with Moyers?
Certainly NOT impeach. He’s part of the herd following Shepard Nancy off the cliff of “impeachment is off the table.”
Instead of LISTENING to his constituents who elected him to represent OUR best interests, he continues to parrot the party leadership line and tell us that he “disagrees.”
Gee, Henry, you work for US. Ever think about that lately? You’ve been an incumbent so long that maybe this relationship has been forgotten. Certainly seemed so in that Town Hall on Dec 27th when the majority of questioners OPPOSED your cavalier position against impeachment.
What you and others like you need is serious opposition in the Democratic primaries. Jane Harman certainly took note last time around when she was challenged by Marcy Winograd of Progressive Democrats of America (LA).
Unfortunately, the thousands of lobbyist dollars you receive scare off any serious opponents….thus keeping our Congress in gridlock. A Congressional approval rating LOWER than the worst president in American history is the result. Have you noticed that lately?
###
This past weekend Henry Waxman did an interview with Bill Moyers. He basically is totally frustrated with the Bush Admin (gee, no surprise). Moyers did not ask him what he intends to do with the results of all of these investigations. In other words, it was a waste of everyone’s time because Waxman and the Dems will not do anything. The worst fraud and plunder ever to take place at the federal level in this country’s history will sache out the door and forever leave its trail of stench behind for all of us to smell. Do we the people want to do anything before these crooks leave office with all of the loot they have plundered from us since our government has abandoned us?
Henry Waxman scheduled hearings on this, Feb 15th.
CREW is moving ahead.
Thank You mairs
“The last uncorrupted person in Washington, please turn off the lights when you leave.”
No one has said it better . . . . .
“The supranational sovereignty of an intellectual elite and world banks is surely preferrable to the national auto-determination practised in past centuries.”
-David Rockefeller, Germany, 1991, speaking to the Bilderberger group.
Our great experiment in democracy is fast becoming what our “government” supposedly hates about dictorial nations. Us poor’ens can only live so long on “trickle down” which in other words would be the ‘drool” of the rich. Revolution is coming and I hope I live long enough to see it!
Washington D.C. politics have become dysfunctional. There is so much corruption and so many lies that there is no more credibility. Who can believe a special prosecutor after what we know about the 9/11 Commission. The deck is stacked and I wouldn’t be surprised if there is no presidential election this year.
Hoa binh
I’m available! [Cheap, too!!]
How about a Cartman-Probe?
“The deck is stacked and I wouldn’t be surprised if there is no presidential election this year.”
There won’t be one, silly [name one in your-lifetime?] — but she’ll be ‘elected’ just-the-same, take that ‘to the Bank’ (if it’s foreign-owned, and within corporate-D.C., that-is!). [She so loves that-Bank — she mentioned it to Me and others at the recent Toronto Bilderberger’s, even…just like her Governor/Rhodes-husband did at the Conference before his big/first-’election’, also]
Ever since Reagan they have told us what they were going to do, they have done it, and we watched them do it.
Runaway climate change might not have happened but for runaway capitalism. Heavy investment in wind and solar in the 80’s or even 90’s might have made a big difference.
When next quarter’s profits are all that matters neither the poor nor the planet has a prayer.
E-mails, shme-mails, Baseball has a steroid problem!
So does football, the Patriots were caught stealing secrets from the other teams side line charts with high power video lenses. Now that’s some really important shit.