The Bush administration suffered a major legal defeat on Monday when a federal court denied the administration's motion to dismiss a lawsuit that has arisen from the possible loss of several million White House emails. The ruling allows the plaintiffs in the case, Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA), to move forward with their legal efforts to force the recovery of the missing emails and the adoption of a more reliable email archiving system.
Meredith Fuchs, the NSA's general counsel, says the White House's pending motion to dismiss had been a "hold up" that prevented anything else from happening in the case. "Now that roadblock is gone, so we have the opportunity now to try to take more aggressive action in the case," she says, adding that the litigation will probably "heat up" in the months to come.
The emails in question, 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 officer. (Need to catch up? Read our full coverage of the missing White House emails story.)
Despite the plaintiff's victory in this latest ruling, the Bush administration has been largely successful in running out the clock on the emails controversy. The NSA and CREW first filed suit in September 2007, several months after Dana Perino, a White House spokeswoman, said she "wouldn't rule out that there were a potential 5 million e-mails lost." It is now a near certainty that the ongoing litigation surrounding the missing emails will not be resolved before the Obama administration takes office in January 2009. When Obama enters the White House, he could continue on the path the Bush administration has set out, or settle the case, as the Clinton administration eventually did when watchdog groups sued over its handling of emails in the 1990s.
The NSA has sued every president since Reagan on the issue of record-keeping. Fuchs, the NSA's general counsel, says Obama could send a positive signal by not adopting the Bush administration's obstructionist attitude with regards to the missing emails. "It's not uncommon for a new administration to change position [on ongoing litigation]," she says. "[Obama] can make clear from day one that his administration is going to be responsible and preserve its records. He can support the National Archives in its effort to restore the records from the Bush White House, so that Congress, the courts, and ultimately the public will be able to learn how decisions were made."
There is some indication already that the Obama administration may consider moving in a different direction related to the record-keeping issue. One of Obama's campaign promises was to "nullify the Bush attempts to make the timely release of presidential records more difficult." Fuchs says this "shows they believe in accountability in the White House." But repealing obscure Bush administration executive orders regarding presidential records would be a far cry from acceding to CREW and NSA's demands for the costly recovery of missing emails and the even-more-costly creation of a functional email archiving system. Mother Jones has asked the Obama press office if the President-elect has plans to continue the Bush administration's legal strategy with regards to the missing emails. We'll let you know what we hear.