White House Ordered to Keep E-Mails

By Peter Baker
Washington Post Staff Writer
Tuesday, November 13, 2007

A federal judge ordered the White House yesterday not to destroy any backup computer tapes of its e-mail, pending civil litigation seeking to learn more about what happened to a trove of messages missing from a 2 1/2 -year period earlier in the Bush presidency.

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.

"We will study the court's order," said White House spokesman Scott Stanzel. "However, the Office of Administration has been taking steps to maintain and preserve backup tapes for the official e-mail system. We have provided assurances to the plaintiffs and to the court that these steps were being taken. We will continue preserving the tapes in compliance with the court's order."

The order stems from the disappearance of possibly millions of e-mails sent and received by aides to President Bush from March 2003 to October 2005. Citizens for Responsibility and Ethics in Washington, 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.

The missing e-mail, along with the disclosure that some White House aides regularly used private Republican National Committee e-mail accounts, fueled congressional suspicions about the decision to fire nine U.S. attorneys, a controversy that ultimately led to the resignation of Attorney General Alberto R. Gonzales.

The White House has said some e-mail may not have been automatically archived but may still be on backup tapes. The administration has not confirmed how many messages might have been lost.

The ethics advocacy group filed a lawsuit to obtain internal documents about what happened, a suit consolidated with a similar action by another private organization, the National Security Archive.

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, said the administration was "parsing statements" in its assertions that it was preserving backup tapes, leading her to doubt its commitment and seek the order. "It certainly makes it look like they're trying to hide something," she said.

Kennedy, a Bill Clinton appointee, sought a recommendation from U.S. Magistrate Judge John M. Facciola, who advised him last month to issue a binding order because an administration declaration is inadequate. "Unlike a court order, a declaration is not punishable by contempt," Facciola wrote. "In other words, without such an order, destruction of the backup media would be without consequence."

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