Court Rules Against White House in Missing E-Mails Case

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.”

Court Sets Deadline for White House Answers on Missing E-mail

National Security Archive 

Update, April 24, 2008

Court Sets Deadline for White House Answers on Missing E-mail

Magistrate Judge Cites "Lack of Precision" in White House Statements

Order Could Force White House to Save Individual Workstation Files;
Action Comes in Response to Archive Motion

http://www.nsarchive.org

For more information contact:
Meredith Fuchs - 202/994-7000

John B. Williams/Sheila L. Shadmand [Jones Day] - 202/879-3939

Washington, D.C., April 24, 2008 - Responding to the National Security Archive's
motion in the pending White House e-mail lawsuit, Magistrate Judge John M.
Facciola of the U.S. District Court today ordered the White House to provide
"precise information" about the users of the e-mail system from 2003 to 2005
and how many of their hard drives still
survive today.

Citing the "lack of precision" in White House statements and its changing story
about which backup tapes have been preserved, Magistrate Judge Facciola also ordered
the White House to "resolve any ambiguities ... once and for all" and identify
the specific dates between March 2003 and October 2003 for which no backup tape
exists.

The magistrate judge also recommended that District Judge Henry H. Kennedy issue
a series of orders that would compel the White House to search the individual
workstations of White House staff, preserve the personal folders
(.PST files in the Microsoft environment) where e-mail may have been stored,
and secure any portable or external media that may contain e-mail from March 2003
to October 2005. Referring to the White House position that it has no formal
program for distributing "hard or external drives, CDs, DVDs, jump, zip, hard,
r floppy disks," Magistrate Judge Facciola commented "[o]ne would hope that
the components have filled the void left by [Office of Chief Information Officer]
by implementing policies and procedures to "track and manage" the removal and/or
transfer of [Executive Office of the President] data..."

"It is remarkable that the EOP, absent this Court's order, has not taken the most
elementary steps to preserve very basic sources of the missing e-mail --
steps that, even as the Court notes, should in this day and age be conducted
as a matter of course in any litigation," commented Sheila Shadmand of Jones Day,
counsel for the Archive.

"The Court is reacting to the inconsistencies in the White House statements:
e-mail are lost one day, the next they are not; e-mails are recoverable,
then they are not; backup media is saved, then it is not," added Meredith Fuchs,
the Archive's General Counsel. 
"What worries us is that time is passing –
there are only 8 ½ more months until this administration leaves office and
if nothing is done soon not only could the e-mails disappear for good, but the
federal records that are commingled with the presidential records could get
swept away and become inaccessible for the next 12 years."
"This ruling is a major victory for accountability at the White House,"
commented Tom Blanton, director of the Archive. "We have seen delay after delay,
and constantly changing stories, none of which come up to the standards that
are required by law."

The ruling comes in litigation brought by the National Security Archive
against the Executive Office of the President and the National Archives
and Records Administration to preserve and restore missing e-mail federal records.
A chronology of the litigation is available here. The suit was filed on
September 5, 2007; a subsequent virtually identical lawsuit filed by
Citizens for Responsibility and Ethics in Washington has been consolidated
with the Archive's lawsuit.

Visit the Web site of the National Security Archive for more information about
today's posting.

http://www.nsarchive.org

Judge orders White House to clarify whether or not missing e-mails are recoverable

Nick Langewis Published: Thursday April 24, 2008 |
Print This Email This

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.

The order stems from a lawsuit by the National Security Archive, filed on September 5, 2007 against the Executive Office of the President and the National Archives and Records Administration, claiming that a possible 5-to-10 million e-mails were either improperly preserved as Presidential records, as required by law, or lost entirely.

House Judiciary Committee chairman Sen. Patrick Leahy (D-VT), in a 2007 address, called such a breach of record-keeping requirements reminiscent of the "18-minute gap" in the infamous Nixon White House tapes, subpoenaed during the Watergate scandal.

The "missing" e-mails cover a 473-day period, which includes the date of CIA agent Valerie Plame's outing and a string of U.S. Attorney firings widely believed to have been politically motivated. The White House was ordered to preserve all known e-mail records in November of 2007.

"This ruling is a major victory for accountability at the White House," said Tom Blanton, National Security Archive director. "We have seen delay after delay, and constantly changing stories, none of which come up to the standards that are required by law."

Between late 2001 and early 2002, the Automated Records Management System (ARMS), put in place by the Clinton Administration to store e-mail records, was dismantled, with the Bush Administration proposing a switch to ECRMS, or the Electronic Communications Records Management System. In the meantime, a temporary procedure of manually archiving each staffer's records was put in place.

E-mails began to disappear on January 3, 2003, and ECRMS was ultimately never put in place. Backup tapes were re-used until October of 2003.

LINDA P. CAMPBELL: Freedom of Information: Mushrooms may like the dark; democracy doesn't need it

McClatchy Newspapers

Tom Blanton wasn't nuts when he told a room full of open-government fans to act squirrely.

Scientists have found, he informed us last Friday, that "squirrels have no idea where they've dug that hole and put that nut." They survive the winter by planting enough nuts that "wherever they go, they're likely to uncover a couple of buried items," he explained. "But if not enough squirrels plant not enough nuts, they're all going to starve."

Then he drove the point home: "

As news gatherers, as news publishers and as citizens, we're going to starve - our democracy, our accountable government, our information flows - unless we get out there and plant some FOIA requests, write some stories and get the story out."

Blanton and the research organization he heads, the National Security Archive, have made it their mission to plant Freedom of Information Act requests all across the federal government to shed light on what agencies are doing in our name. FOIA is the 1966 federal law that requires agencies to give people records they ask for (with certain exceptions), supposedly in timely fashion and without regard to why the information is being sought.

Through FOIA, the archive has uncovered fascinating nuggets of history as well as documentary treasure troves of insight into how government operates.

Right now, the archive's Web page, www.nsarchive.org, links to:

• -Declassified histories compiled by the Air Force that show CIA involvement in combat air attacks during the Vietnam War.
• -Stories about the archive's continuing lawsuit seeking to force the Bush White House to preserve and restore thousands of missing e-mails.
• -An analysis of open records practices in Mexico.
• -The CIA's "family jewels" - a 693-page file detailing years of domestic spying and other improper practices by the CIA.
• -And there's "Nixon meets Elvis." It turned out, archive staffers discovered, that the document that people most wanted to see at the National Archives - home of our nation's founding documents and other precious papers - was a photo of President Nixon hosting Elvis Presley at the White House on Dec. 21, 1970.

National Security Archive staff filed a FOIA request for all related documents and received a file that included Elvis' letter on American Airlines stationery seeking a meeting with Nixon; talking points recommending that the president ask the singer to create a TV special about getting high on life, not drugs; and a photo of Nixon inspecting Elvis' cufflinks. (You can see these on the group's site.)

During its history, the privately funded group has filed more than 35,000 open records requests and collected 8 million to 10 million documents, Blanton told an audience at the First Amendment Awards banquet sponsored by the Society of Professional Journalists' Fort Worth chapter last Friday.

Release of the "family jewels" last year came about after the archive had asked a range of federal agencies for their 10 oldest pending FOIA requests. Though the law sets specific deadlines for turning over information requested by the public, they often aren't met - sometimes for years. A request for the "family jewels" had sat unfilled for 15 years, Blanton said.

Because of a 2005 executive order signed by President Bush and because of FOIA changes pushed into law last year by Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, many agencies are reducing their backlogs of old open-records requests. But the two senators are continuing to try to strengthen FOIA.

The law never has been really popular with those who must comply with it, Blanton said. President Lyndon Johnson signed it grudgingly.

In 1974, President Ford vetoed a bill designed to put teeth into it, on the advice of two key aides and a Justice Department lawyer: Dick Cheney (now vice president), Donald Rumsfeld (later defense secretary) and Antonin Scalia (now a Supreme Court justice).

Congress overrode Ford - to the enduring public benefit.

There's no doubt that the U.S. government is among the world's most open. But it helps that nosy reporters ask questions and that courageous government employees are willing to blow the whistle when they see questionable practices and wrongdoing.

"The good news is that when you shine a light on things, they get fixed," Blanton said.

Mushrooms might thrive in the dark, but democracy doesn't do so well.

ABOUT THE WRITER

Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Readers may write to her at 400 W. 7th Street, Fort Worth, Texas 76102, or via e-mail at lcampbell@star-telegram.com.