New Deadline in Missing WH Emails Case

| Tue Mar. 18, 2008 7:10 PM EDT

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.

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There is already a court order that asks the administration to preserve emails, but it's now "pretty clear that the court seems concerned that in fact the original preservation order doesn't go far enough," Anne Weismann, CREW's Chief Counsel, told me this afternoon.

The White House has said it "fully intends to comply" with Facciola's order. That will likely mean submitting a reason why the administration thinks it would be unwise or too costly to make copies of every hard drive in the EOP. Both sides will probably bring in experts to argue over how much this will cost, and the judge will have to weigh the potential "irreparable harm" to the plaintiff's interests against the price tag of his proposed measure. "We still don't know what the court's going to do at the end of the day," Fuchs says.

Even if the court does end up following through and ordering copies made of every EOP hard drive, the lawsuit will not be over. In addition to seeking assurances that emails will be recovered, the plaintiffs are suing to make the White House implement a better archiving system. The current system, one National Archives official told the OA in November, "[H]ardly qualifies as a 'system' by the usual IT definition." An internal White House memo released by the House oversight committee said that "[S]tandard operating procedures for email management do not exist," and cautioned that "lost or misplaced email archives may result in an inability to meet statutory requirements."

With the Bush administration in its final year, there's little hope that the White House will replace the existing email archiving "system". During its first term, the Bush administration discarded the Clinton administration's Lotus-based system and started to work on a replacement, called the Electronic Communications Records Management System (ECRMS). But ECRMS was scrapped in 2006, and since then the current ad-hoc system, which relied for a long time on manual backups of data and the creation of extremely large, unstable .pst files, has been used in the absence of a dedicated archiving system. It's not clear that any replacement has been proposed or is in the works.

Another issue that will have to be resolved before this whole mess is wrapped up (something that the National Archives expects won't happen until the next administration takes office) is the constantly-changing White House line on the missing emails. After originally acknowledging that some emails could be missing, the White House claimed early this year that it didn't know if any messages are actually gone. Payton, the OA Chief Information Officer, gave apparently contradictory testimony to the House oversight committee and the court that is handling the NSA case. And documents and testimony that came to light during a February 28th oversight committee hearing make it clear that, despite its denials, the White House is likely aware of specific missing emails, some relating directly to the Valerie Plame case. One contradiction at issue is Payton's statement to the court on Jan. 16 that "substantially all" e-mails from 2003 to 2005 would be on backup tapes. The fact that tapes from March to October 2003 were recycled raises the possibility that Payton's statement may have been demonstrably false. CREW has asked that the court order the EOP to say why it should not be held in contempt of court, and submitted a motion detailing this and other contradictions in White House officials' sworn testimony (PDF).

"The White House has contradicted itself repeatedly, so they walked themselves into this," says Fuchs, the NSA's counsel. She argues that the administration's penchant for secrecy has made it hard for the plaintiffs to figure out if the White House was acting in good faith to try to preserve the emails. "For all we know they could be doing something reasonable, but we don't know."

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