Where Are the E-mails?
By Dan Froomkin
Special to washingtonpost.com
Tuesday, November 13, 2007; 12:52 PM
Why is it taking White House officials so long to restore millions of deleted e-mails from the backup tapes they claim to have?
The e-mails in question date from March 2003 to October 2005 -- a crucial period that includes the Iraq invasion, a presidential election and Hurricane Katrina.
White House officials have known for more than two years that the messages were deleted -- a clear violation of presidential records-preservation statutes. But the president's aides won't explain what happened, what sort of backups they have and what they're doing about it.
That obstinacy led a federal judge to step in yesterday and order the White House to preserve every bit of related data in its possession -- just to make sure nothing untoward happens while a civil suit by two open-government groups goes forward.
Peter Baker writes in The Washington Post: "The Bush administration had opposed such an order, arguing that it is unnecessary because the White House administrative office already is preserving backup tapes in its possession. But U.S. District Judge Henry H. Kennedy Jr. was not satisfied by that assurance and issued the formal order, which carries contempt penalties if violated. . .
"Citizens for Responsibility and Ethics in Washington [CREW], a watchdog group that has been critical of the administration, has said it was told by internal sources that the White House determined that at least 5 million and perhaps many more e-mails from that period were not saved as required by law."
Pete Yost writes for the Associated Press: "The Federal Records Act details strict standards prohibiting the destruction of government documents including electronic messages, unless first approved by the archivist of the United States. . . .
"The judge's order 'should stop any future destruction of e-mails, but the White House stopped archiving its e-mail in 2003 and we don't know if some backup tapes for those e-mails were already taped over before we went to court. It's a mystery,' said Meredith Fuchs, a lawyer for the National Security Archive."
Here is the order:"defendants shall preserve media, no matter how described, presently in their possession or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction. Defendants shall preserve the media under conditions that will permit their eventual use, if necessary, and shall not transfer said media out of their custody or control without leave of this court."
In their motion, National Security Archive lawyers explained that "fundamentally, the defendants refuse to provide any details about the still existing body of back-up copies, including what time period they cover, the extent to which they contain any of the missing emails, and whether there are multiple copies beyond what the defendants have variously referred to as 'disaster recovery tapes -- tapes formatted to focus on restoring systems and point in time data in the event of an emergency -- that were in the [White House] Office of Administration's possession as of September 5, 2007' . . .
"The missing records at issue span critical events in U.S. policy, including the invasion of Iraq in March 2003, the Abu Ghraib scandal, release of a congressional report detailing the flawed intelligence that was relied upon concerning weapons of mass destruction in Iraq, and the handling of Hurricane Katrina. If the deletions go beyond 2005, they may also involve records concerning the renewal of the highly controversial U.S.A. Patriot Act, a major administration initiative concerning immigration policy, and the White House role in the firing of a number of U.S. Attorneys. These are the kinds of records that the Federal Records Act seeks to preserve because they document our history and facilitate an informed American public."
In their motion, lawyers for CREW wrote: "To the extent this particular set of tapes does not encompass all of the missing emails, it is essential that other copies are preserved, whether or not they were created specifically for disaster recovery efforts and whether or not they are currently in the OA's [Office of Administration] possession, custody or control.
"This information may also reveal the extent to which any of the defendants has already destroyed any back-up copies of the deleted email records or transferred them out of the OA's possession, custody or control. Separate and apart from the illegality of any such action, it is critical to ascertain what back-up copies may have been destroyed to determine what additional steps can and should be taken to replicate those copies before the end of President Bush's term in office. These other copies, however, whether in hard drives or other repositories, are only accessible for the duration of President Bush's term, after which they will be cleaned out for the incoming president. Accordingly, it is critical to pinpoint what back-up copies are presently available and what back-up copies have been destroyed to explore, in the short time that remains, alternative methods of restoring the millions of deleted email records. . . .
"Under this administration's watch, millions of email have gone missing and the White House has done nothing to reconstruct those historically important federal records or take steps to prevent further document destruction. When confronted with requests for information about the missing email problem, the White House has unilaterally removed itself from the public arena altogether by declaring that the OA is no longer an agency subject to government sunshine laws. In the short life of this lawsuit the White House defendants have refused to give adequate assurances of document preservation, refused to provide basic information and refused to meet with plaintiff's counsel to plan for discovery."
Here's more background from the National Security Archive and the original CREW report from April about the missing e-mails.
Oversight Watch
On August 30, House Oversight Committee Chairman Henry Waxman wrote a letter to White House Counsel Fred Fielding demanding some answers from the White House.
"On May 29,2007, Keith Roberts, the Deputy General Counsel of the White House Office of Administration, and Emmet Flood, Special Counsel to the President, briefed Committee staff on the White House e-mail system and the missing e-mails," Waxman wrote. "At the briefing, Mr. Roberts informed Committee staff that the White House had discovered in 2005 that an unknown number of e-mails may not have been preserved in the White House archive, as required by the Presidential Records Act. According to Mr. Roberts, the Office of the Chief Information Officer then conducted a review of the e-mail system to determine the scope of the potential loss. He said that this review apparently found some days with a very small number of preserved e-mails and some days with no e-mails preserved at all. He also stated that a report summarizing these findings had been presented to the White House Counsel's office.
"In addition, Mr. Roberts informed the Committee that an unidentified company working for the Information Assurance Directorate of the Office of the Chief Information Officer was responsible for daily audits of the e-mail system and the e-mail archiving process. Mr. Roberts was not able to explain why the daily audits conducted by this contractor failed to detect the problems in the archive system when they first began.
"At the conclusion of the briefing, Committee staff requested a copy of the analysis presented to White House Counsel and the identity of the contractor responsible for daily audits and archiving. Mr. Flood told Committee staff that he would take the two requests under consideration. Since then, Committee staff have repeatedly requested that the White House provide this information without success. Given that three months have passed since your office first received this request, I am writing to ask that you provide the information to the Committee by September 10, 2007."
But earlier this month Damon Poeter wrote for an online marketing trade publication, ChannelWeb Network: "When Congress asked about 5 million executive branch e-mails that went missing, a White House lawyer pointed the finger at an outside IT contractor.
"The only problem? No such IT contractor exists, according to sources close to the investigation of a possible violation of the Federal Records and Presidential Records acts."
As for Waxman's Sept. 10 deadline, Poeter wrote that it had "come and gone with no response from the Bush administration on Waxman's request."
Scandal Convergence
And how did the public find out about the e-mails deleted off the White House servers? From CIA leak special prosecutor Patrick Fitzgerald. In January 2006, after his indictment of vice presidential aide Scooter Libby for obstruction of justice and perjury, Fitzgerald sent a letter to Libby's lawyer that understatedly noted that "we advise you that we have learned that not all e-mail of the Office of 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."
Not the Same E-Mails
A lot of people seem confused about this, so it's worth pointing out that there are two entirely different sets of missing e-mails: These and the ones that top White House aides including Karl Rove intentionally sent and received using their Republican National Committee e-mail accounts even while knowing full well that circumventing the White House servers for official business was a violation of federal law.
When congressional investigators looking into the suspicious firings of nine U.S. attorneys last year started asking after those e-mails, it turned out those were missing, too, just for different reasons: They'd been deleted by the RNC. The White House is ostensibly trying to recover those as well.
For background on that set, see my April 13 column, E-Mail Saga Gets Fishier, and my June 19 column, Casual Lawbreaking at the White House.