By Elizabeth Williamson and Dan Eggen
Washington Post Staff Writers
Tuesday, January 22, 2008
For years, the Bush administration has relied on an inadequate archiving system for storing the millions of e-mails sent through White House servers, despite court orders and statutes requiring the preservation of such records, according to documents and technical experts.
President Bush's White House early on scrapped a custom archiving system that the Clinton administration had adopted under a federal court order. From 2001 to 2003, the Bush White House also recorded over computer backup tapes that provided a last line of defense for preserving e-mails, even though a similar practice landed the Clinton administration in legal trouble.
As a result, several years' worth of electronic communication may have been lost, potentially including e-mails documenting administration actions in the run-up to the Iraq war.
White House officials said last week that they have "no reason to believe" that any e-mails were deliberately destroyed or are missing. But over the past year, they have acknowledged problems with archiving, saving and finding e-mails dating from early in the administration until at least 2005.
The administration's e-mail policies have been repeatedly challenged by lawmakers and open-government groups, in congressional hearings and in court. Two groups, the National Security Archive and Citizens for Responsibility and Ethics in Washington, have accused the White House in lawsuits of violating the Federal Records Act because of what they say is its failure to preserve millions of e-mails, a charge the White House rejects.
The White House's record-keeping problems have thrown new attention on a gap in statutory language covering the retention of presidential records.
"If it is a presidential record, then it does need to be retained. It doesn't matter what the format is -- e-mails can be records," said Susan Cooper, a spokeswoman for the National Archives and Records Administration. But the agency has no power to intervene if an administration is not preserving presidential records, inadvertently or not, Cooper said.
The law governing nonpresidential federal records is stronger. The National Archives can demand an explanation from any federal agency that it suspects is mishandling records, and it can request a Justice Department probe. Private parties can sue to force compliance with federal records laws, but not the presidential-records statute.
Controversy surrounding the Bush administration's policies intensified on Thursday, when the House Oversight and Government Reform Committee released details of a briefing by White House special counsel Emmet T. Flood, in which he disclosed that a 2005 White House study had identified 473 separate days in which no electronic messages were stored for one or more component offices.
In the presidential offices, for example, not a single e-mail was archived on Dec. 17, 20 or 21 in 2003 -- the week after the capture of Saddam Hussein. According to the study summary that the committee released, e-mails were not archived for Vice President Cheney's office on four days in early October 2003, coinciding with the start of a Justice Department probe into the leak of a CIA officer's identity, which later led to criminal charges against Cheney's chief of staff.
The committee's chairman, Rep. Henry A. Waxman (D-Calif.), has scheduled a Feb. 15 hearing to inquire about the gaps.
The current e-mail controversy carries echoes from a scandal that rocked the Clinton administration a decade ago, when GOP-led congressional probes found that hundreds of thousands of White House e-mails had been lost, primarily involving the office of then-Vice President Al Gore.
A 2001 audit by the Government Accountability Office said that part of the trouble was due to problems created while maintaining and updating a custom archiving system known as the Automated Records Management System (ARMS). The system was put in place in 1994, after a federal court ruled that the White House must preserve e-mails under the Federal Records Act.
The missing Clinton White House records prompted allegations from Republicans that the administration had sought to hide the archiving problem from congressional investigators and the courts. Republicans also alleged that some of the missing correspondence may have related to the Monica S. Lewinsky investigation, a campaign finance probe of Gore and other controversies. The government eventually spent nearly $12 million to retrieve missing e-mails for congressional investigators from backup tapes.
The GAO report concluded that Gore's office "did not implement adequate records management practices to ensure that all e-mail records generated or received were preserved in accordance with applicable law and best practices."
Linda Koontz, the director of information-management issues at the GAO and the author of the 2001 report, called the trouble with ARMS "a human interaction problem . . . from what we saw there was not a problem with the system itself at that point in time."
The report noted that some presidential records "may have been irretrievably lost" because White House officials decided to write over, or "recycle," backup tapes -- a practice that the Clinton team discontinued in 1998 and 1999.
By the end of Bill Clinton's presidency, White House officials said the problems with ARMS had been solved. But shortly after Bush took office, his administration began taking steps to phase out the system.
White House technology officials proposed two different records-management systems as ARMS replacements in 2003 and 2004, but neither was adopted, according to administration documents submitted in court filings. White House spokesman Scott Stanzel would not comment on why ARMS was eliminated.
The system was never replaced, according to court records and officials. Instead, after the White House switched its e-mail software from Lotus Notes to Microsoft Exchange in 2002, the administration chose to rely on the Microsoft software to perform archiving functions, according to a White House affidavit filed in U.S. District Court in Washington last week.
In April, White House spokeswoman Dana Perino referenced the e-mail software change in answering a reporter's question about millions of lost e-mails alleged by Citizens for Responsibility and Ethics in Washington and the National Security Archive. "I wouldn't rule out that there were a potential 5 million e-mails lost," she said. "There was no intent to have lost them."
The White House appears now to have changed its stance. "We have no reason to believe that any e-mails, at all, are missing," spokesman Tony Fratto said Thursday, before declining to answer further questions Friday.
Parties to the e-mail lawsuits question why the Bush White House chose to get rid of the ARMS system, however flawed, and not replace it with a new archive program.
Tom Blanton, who heads the National Security Archive, toured the Executive Office of the President shortly after the ARMS system was installed. When users tried to delete e-mails, an on-screen message asked whether the e-mail was of historic or evidentiary value; if the user indicated it was, it went to a repository for preservation.
"But that has disappeared, and as far as I know there's no apparent system," Blanton said. Instead, the White House has looked to a separate system of emergency backup tapes as an archive, he said. But the administration did not begin to preserve those tapes until after October 2003, according to one of its affidavits.
Theresa Payton, chief information officer in the President's Office of Administration, indicated in an affidavit last week that the White House relies on two systems to store electronic messages: an archive that is part of its e-mail software and the backup tapes, which are designed to help restore computer records after a disaster.
Backup tapes, several computer experts said, are no substitute for a comprehensive records-management system.
"Disaster recovery is not the same thing as records retention," said Eugene Spafford, a professor of computer science and engineering at Purdue University. Spafford said backup tapes do not preserve all the e-mails generated in a day because they record a "snapshot" of a network that includes only the e-mails present at a given moment. The tape does not record those e-mails created and deleted between daily backups, he said, and besides, "You can have inadvertent failures . . . or individuals can purposely destroy contents or edit contents."
The GAO's Koontz agreed that backup tapes are "not meant to keep the e-mails that you need to keep in perpetuity or for whatever period in time you're required to keep them." Government offices, she said, are "supposed to put things in a record-keeping system."
Staff researcher Madonna Lebling contributed to this report.