A federal judge told the Bush administration today that it has three days to give him a good reason why he shouldn't order the White House to make copies of every computer hard drive in the Executive Office of the President (EOP). Judge John M. Facciola's ruling (PDF) is a major victory for two Washington non-profits, the National Security Archive (NSA) and Citizens for Responsibility and Ethics in Washington (CREW), who have been battling the administration in court to ensure the preservation of missing White House emails.
The emails, which could number in the millions, are from between 2003 and 2005 and could include information about the runup to the war in Iraq and the outing of Valerie Plame Wilson as a covert CIA agent. (Need to catch up? Read our full coverage of the missing White House emails story.)
In another victory for the plaintiffs, the Judge noted the fact, reported by Mother Jones in January but largely ignored in the mainstream press, that the White House's regular 'recycling' of email backup tapes prior to October 2003 indicates that emails between March and October 2003 are probably not preserved anywhere. This contradicts what Theresa Payton, the White House Office of Administration's (OA) Chief Information Officer, said in January when she claimed that "substantially all" the missing emails would be preserved on backup tapes (PDF). From the Judge's order:
It is nevertheless true that if e-mails have not been properly archived as plaintiffs allege, and copies of those e-mails do not exist on back-up tapes, then the obliteration of data upon which those e-mails may be reconstructed threatens the plaintiffs with irreparable harm. This appears to be the case for any e-mails that were not properly archived between March 2003 and October 2003, during which time no back-up tapes exist. [Emphasis added.]
Facciola's ruling indicates that he takes the plaintiffs' concerns seriously and understands that time is of the essence, since every day that goes by makes it increasingly likely that potentially recoverable email data will be permanently lost. If Facciola does order copies made, it will mean that "while the clock is ticking [the emails] are not going to disappear," explains Meredith Fuchs, the NSA's General Counsel.