MotherJones Blog: Still M.I.A.: Millions of White House Emails

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Still M.I.A.: Millions of White House Emails

Remember how White House spokeswoman Dana Perino told us in April that she "wouldn't rule out" that the Bush administration may have lost 5 million emails? You know, the emails the White House doesn't want you to see? No? Here's your update:

The Center for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA) noticed the administration's "technical issue," and they sued to find out how and if the White House plans to recover them.

The White House, which is nothing if not predictable, has of course refused to answer any questions about the "lost" emails, which could contain information on everything from Valerie Plame to the U.S. Attorneys scandal to Hurricane Katrina. But a court order (PDF) issued Tuesday by D.C. District Court Judge John Facciola gives the administration five business days to answer four questions about whether and how the emails are backed-up. These are the questions the plaintiffs needed a court order to get the White House to answer (I am not making this up):

1. Are the back-ups catalogued, labeled or otherwise identified to indicate the period of time they cover?

2. Are the back-ups catalogued, labeled or otherwise identified to indicate the data contained therein?

3. Do the back-ups contain emails written and received between 2003-2005?

4. Do the back-ups contain the emails said to be missing that are the subject of this lawsuit?

To make this perfectly clear: the plaintiffs are still trying to find out whether the White House even has the emails. Meredith Fuchs, the NSA's General Counsel, told me she's doubtful that, even faced with a court order, the White House will provide full answers to their questions.

"I hope that we're going to learn something about what emails still exist and are recoverable, but I worry that they will continue to evade answering the questions," she says.

That seems fairly likely, since evasion works to the White House's benefit. If the backup tapes do not in fact contain the missing emails (Question 4), then every day that goes by means the emails are less recoverable. If they weren't backed-up, the emails would have to be dredged up from the depths of computer memory on individual workstations and servers or through other, unnamed "forensic means." And as anyone who has ever deleted an important file and tried to recover it knows, the more you use a computer after losing a file, the harder it is to recover. According to the court order, "[E]mails that might now be retrievable from email account folders or 'slack space' on individual workstations are increasingly likely to be deleted or overwritten with the passage of time." So if the White House is trying to keep damaging emails from prying eyes, the more it delays, the less likely it is that anyone will ever see them.

Judge Facciola appears to recognize that time is of the essence. Thus the court order. But Anne Weismann, CREW's Chief Counsel, says that the White House has lots of ways to buy more time. If the White House gives incomplete or vague answers to questions that Weismann characterized as "pretty straightforward," "not burdensome," and "discrete" the plaintiffs would have to push the court to find the White House did not sufficiently answer the questions.

"If we have to go down that road it uses up time and that really seems to be the goal on the administration's side—to use up the clock. Judge Facciola recognized that time is running out, but it's very sad that we're talking about the possibility that the White House may not comply with a court order. How have we gotten to that point?"

Both the House Judiciary Committee and House Oversight Committee have taken an interest in the missing emails, but CREW and the NSA would like to see Congress do more. Weismann said her group is doing its best, but Congress is simply better-positioned to hold the administration to account for its record-keeping failings. Weismann said that Congress could subpoena documents that might break the story wide open.

"There were documents created that reflect all this information," she said. According to Weismann, when the missing email problem was first discovered, the federal Office of Administration developed an action plan to recover the missing data from backup tapes. But Weismann said that she's been told the plan was never implemented. CREW used a Freedom of Information request to try to obtain the documents relating to the plan, but the administration has so far refused to release the documents. "It does seem that Congress has some tools that they could more effectively use, like subpoenas," Weismann said. "It would be a first step in the evidentiary proof that this White House has blatantly disregarded its record keeping obligations. That might be something that Congress might want to get and they might have more success than we've had so far."

(The House Oversight Committee has not yet returned a call seeking comment.)

The next step for the plaintiffs depends on how the White House responds. If it turns out that the emails are on backup tapes, then CREW and the NSA will ask the judge to ask the National Archivist to ask the Attorney General to force the White House to have them restored. If the Attorney General then does nothing, they could ask Congress to force the issue. The plaintiffs will also ask the judge to force the White House to install an appropriate record-keeping system so similar problems won't happen again.

If the emails are not on the backup tapes, that could lead to an even bigger legal standoff. "If they deleted the backups knowing that they were the only remaining copies of these missing emails, that raises all sorts of questions about criminal misconduct," Weismann said. But criminal misconduct aside, the plaintiffs would then pursue obtaining the emails from other sources, like individual computers and email accounts. It's unclear whether the court would permit that.

In the middle-to-long-term, CREW and the NSA would also like to see Congress amend the Presidential Records Act. As currently interpreted by the courts, the act does not give groups like the NSA cause of action to sue to force the White House to obey record keeping laws. Neither does current law give the National Archivist jurisdiction to monitor presidential record-keeping, as it does for federal records. So the current lawsuit is entirely under the auspices of the Federal Records Act.

Interestingly, the NSA and CREW were only able to bring their lawsuit because of the Bush administration's haphazard record keeping. It's only proceeding because the Bush administration doesn't have a system that divides presidential and federal records. (Presidential records are produced by bodies like the National Security Council that simply advise the president. Federal records are produced by bodies that have functions beyond giving advice, They are governed by a different statute.) The Clinton administration had a system that sorted emails automatically and stored them in a secure, searchable archive, but the Bush administration discarded that system when it came into office. As far as anyone outside the White House knows, that system was never replaced, so federal and presidential records were commingled. (The Clinton system wasn't perfect—some of the Vice-President's records went missing, which led to a mini-scandal and a report from the Government Accountability Office that stressed the importance of good record keeping.)

So when 5 million (or as many as 10 million, according to Weismann) emails went missing, they included many federal records. That is what made it possible for NSA and CREW to bring their suit. If the Bush administration had kept the two types of records separate, and the only missing emails were presidential records, the plaintiffs suit would probably have been dismissed out of hand. But it remains to be seen whether this story will get the coverage it deserves. Anne Weismann told me she worries the issues involved are too complex.

"Ultimately, the story is a huge scandal, but in order to get there the public has to understand a lot of technical and legal things, and I think the White House has been lucky that this hasn't taken off yet in the way it should because it's complicated."

That's too bad.

Comments

Emails do not dissappear on their own. There could be the random one that is lost due to a workstation issue. However, if there are millions of missing emails, they were removed by a human being.
I find it offensive that the White House continues to treat us as idiots. Even more so because no one seems to care. I hope the Congress gets involved before it is too late.

Posted by: laura on 01/11/08 at 11:26 AM Respond

The Bush Administration has made such a mess of things in seven years, that it would probably take 10 years to sort it all out and because of that, they are probably going to just get a free pass on all of their crimes and misdeeds. Former President Eisenhower said he believed that being involved in the working of the government should be at least the part time job of every American. I would go with part time, but you could spend 24/7 on this mess and never keep up with it all. I would like to be able to go to my job and do it to the best of my ability each day without having to invest so much time in worrying about what the elected officials are doing to further ruin my country.

Posted by: Sharon Ash on 01/11/08 at 11:38 AM Respond

Now everyone can move to or invade the USA to do anything they want as crime no longer exists. Since the leadership of the USA is doing things against the law then it must be legal for anyone to do anything they want as there is no law or agency in the USA to which even the highest leaders need comply. Therefore these same “laws”, or any other USA laws, need not be complied with by anyone since the bushy bush gives the example of not complying.

I suppose he thinks he’s the same bush that was found burning for Moses. Maybe someone could burn the USA bush so we can all ge back to progressing civilization.

By the way when you Americans are tired of living in nazi-USA come to Canada. We don’t allow your leaders here as they are under citizen arrest here and in most countries of the world including the USA.

Murderers can be detained by use of deadly force. Most individuals in the USA leadership are personally 1st degree murderers and are aware of their travel restrictions. However, we do not execute people here. We feed them to polar bears which are now endangered by bushy-wushy greed.

Posted by: Dennis from Canada on 01/11/08 at 1:04 PM Respond

Wake up America!!!

Time to pick up the pitchforks and clean out the pig pen!!

Posted by: American Citizen on 01/11/08 at 1:39 PM Respond

This is in response to Sharon Ash,very well said,i salute you!....Steve

Posted by: steve jones on 01/11/08 at 1:52 PM Respond

gimme a break, it's not that complicated. they're required to keep records, they either didn't, have them and won't turn them over or destroyed them. all three are illegal. in addition they are obstructing the investigation. why are they getting a free pass from anyone?

funny how a few of gore's gone missing was a scandal in a time with much cruder technology though.

Posted by: somegirl on 01/11/08 at 2:12 PM Respond

Why be offended that the WH treats us as idiots? Everything has only confirmed their view. I'm offended that we are (collectively) ACTING like idiots. As long as we allow it, we validate their strategies.

Posted by: Lou Sanchez on 01/11/08 at 3:18 PM Respond

Bush makes Nixon look like a shining example of an honest president...

Posted by: weee on 01/11/08 at 5:06 PM Respond

Dennis, What will you do when they impose the North American Union on all of us? I figure that G.B. wants to be a president to all of us.

We are in a mess down here.

Posted by: Hobson's Choice on 01/11/08 at 7:39 PM Respond

No wonder Bush and Putin get along so well, missles or no missles.

Posted by: knot surprised on 01/11/08 at 9:04 PM Respond

No wonder Bush and Putin get along so well, missiles or no missiles.

Posted by: knot surprised on 01/11/08 at 9:05 PM Respond

I don't like to say all hope's lost, but (pretty much) all hope is lost. The Owning Class figured out long ago that Americans are intellectually lazy, and think that our annually-venerated heroes died to win us our freedom and democracy permanently -- no maintenance required. Then the Owners invented television-as-we-know-it to keep us compliantly zoned out on our couches, ingesting their it's-all-good pap, with our beer and pretzels.

Lazy programmed Americans know everything already, and can't be bothered to question the wisdom handed them by FAUX "news." They know who the enemy are: "terrorists," and people who question the government. By raising "old" issues like the "innocently" deleted emails, you just make sure you're on their shit list.

A democracy without an informed and involved citizenry is no longer a democracy. When the people are so ill-informed that they cannot tell the truth from a lie, they will go with the most photogenic liar; and they've never seen the wreck of Bush's face without botox. Since the public THINKS they are informed, they will never seek after details; instead modeling the (apparent) cogitation style of those who keep them "informed." Bill O'Rielly models the proper knee-jerk way to approach complex issues. Ignore the complexities, and grab it by any handle that fits one of your preconcieved notions; the foremost tool in the kit being an endemic distrust of intellectuals and liberals. In fact the very claim that an issue is complex is a giveaway that liberals are trying to stack the deck somehow, because all important issues are by definition simple, and can be treated as such.

That's the mindset the American public has been programmed with. Middle America is quite satisfied with simple views of reality, that leave more time for their favorite shows. They don't want to know the details.

We don't want to trouble ourselves with making sure our public servant serve us. So, despite our common sentiment that politicians can't be trusted, we nevertheless prefer to trust them; because it's just less trouble that way.

We don't want to admit that freedom doesn't stay free without constant weeding and pruning and chasing off the predators. We don't want to know that we are the ones who have to know enough about the process, and participate in the process, of keeping our house secure. We are vegged out watching the tube, in the house of our freedoms, with loaded guns on the coffee table, and we can't even muster the energy to lock the door against people walking in and holding us up with our own weapons.

Posted by: Dan Mortenson on 01/12/08 at 1:07 AM Respond

katrina was a very bad dissaster. Kaos was everywhere and very sad stories followed very hard.
Missing documents wheter on paper or electronic is a very bad situation.
Many things could draw to such situation such as funds being malbursed.

Posted by: Dr.Q on 01/13/08 at 10:55 AM Respond

Scandel, smandel, nothing is too evil to stick to the teflon presidency. This presidency has commited over a dozen impeachable offenses. They spy on us. They torture. They invade other countries. Everything they say is a lie. They commit terrorist acts on a daily basis. Have suspended Habeus Corpus. Have removed democractically elected leaders from their posititions in government. And when we seek to hold them accountable, the evidence disappears or they have underlings fall on their swords. And these are just some of the things we know about never mind the atrocities they've managed to keep hidden. I love my country and what it is supposed to stand for so therefore I must despise and mistrust the executive branch. If America was ever not lost, it certainly isn't following the ideals of the Constitution now.

Posted by: nakis on 01/14/08 at 4:22 AM Respond

The American people are fairly well educated, and I believe that IF this could make FRONT page news more people would demand answers.

Posted by: Mary Robinette on 01/14/08 at 5:51 AM Respond

It is high time that those Congressional bodies responsible for such oversight reassert their authority and stop wasting the taxpayers time with all their platitudes for each other and demand that which they have every right to have. If stalling continues, our forefathers did give them the impeachment power.

Posted by: deke33 on 01/14/08 at 1:48 PM Respond

Excellent response Dan Mortenson. I agree. But, America is a "Constitutional Republic" not a "Democracy."

Posted by: leima on 01/17/08 at 9:49 AM Respond

I salute those whom have posted prior to my comment. Today's Chicago Tribune decided to put this email issue on their front page, but under the controversial abortion headline.
All US citizen's should make it their business to support the members of Congress, i.e. Dennis Kuncinich, Waxman and Wexler, whom are attempting to get the IMPEACHMENT process going. I will say IT'S ABOUT TIME!

Posted by: bernadette warrens on 01/17/08 at 10:01 AM Respond

December 17th, 2008 - Thursday

What is the difference in the missing of 5 million to 10 million e-mails by Emperor Bush and his Dick as in shoot your best friend in the face Cheney to have distroyed to Nixon's 18 1/2 minutes missing on the Watergate Tapes? With high speed computers today, it would most likely take 18 1/2 seconds to wipe out 5 to 10 million e-mails. Now the only difference is today, it will take 18 1/2 days to recover all those missing 5 to 10 million of missing e-mails. My, my how history repeats itself. To think their president is not a crook! Emperor Bush are you going to share all those diamonds and gold you got in all those bags on your trip to Saudi Arabia from the Prince? Do we in America hear Wedding Bells? That photo op of you Emperor Bush with those Gold Chains around your neck and kissing moment with the Prince was priceless! So how much is this going to cost America? Royal Weddings are so expensive today! Maybe your Dick will give you away! Will you use Rice at the Wedding? It could happen. You have surely given American away to China & Saudia Arabia. Sounds like one of those Royal arranged marriages. Can we say we were all invited and not have to show up? Keep Hope Alive! Kiss! Kiss!

Posted by: Officer Thomas A. Porter D.P.O. on 01/17/08 at 8:55 PM Respond