By R. Jeffrey Smith
Washington Post Staff Writer
Thursday, January 15, 2009
A Justice Department lawyer told a federal judge yesterday that the Bush administration will meet its legal requirement to transfer e-mails to the National Archives after spending more than $10 million to locate 14 million e-mails reported missing four years ago from White House computer files.
Civil division trial lawyer Helen H. Hong made the disclosure at a court hearing provoked by a 2007 lawsuit filed by outside groups to ensure that politically significant records created by the White House are not destroyed or removed before President Bush leaves office at noon on Tuesday. She said the department plans to argue in a court filing this week that the administration's successful recent search renders the lawsuit moot.
Hong's statement came hours after U.S. District Court Judge Henry H. Kennedy Jr. ordered employees of the president's executive office -- with just days to go before their departure -- to undertake a comprehensive search of computer workstations, preserve portable hard drives and examine any e-mail archives created or retained from 2003 to 2005, the period in which e-mails appeared to be missing.
Hong said private contractors had helped find the e-mails by searching through an estimated 60,000 tapes that contain daily recordings of the entire contents of the White House computers as a precaution against an electronic disaster.
Her remarks prompted Anne Weisman, the counsel for one of two plaintiffs in the lawsuit, Citizens for Responsibility and Ethics in Washington (CREW), to say, "I'll believe it when I see it." Weisman said she hoped the administration's efforts to recover the e-mails can be verified by an independent expert, noting that officials have repeatedly declined to detail the procedures they used. She also said questions persist about whether backup tapes still existed for all of the days for which e-mails were reported missing.
Meredith Fuchs, counsel for the other plaintiff, a historical group known as the National Security Archive, said the Justice Department's statement was "striking" because the admission that 14 million e-mails had to be recovered showed "the level of mismanagement at the White House" of its historically significant records. She said, "For the past year and a half, they said, 'Don't worry, don't worry, leave us alone.' Now they say, at the last minute, they have solved it. I want to see the evidence."
Kennedy's order was the latest in a series of rulings about the fate of Bush administration records that have been unfavorable to the White House. Bush aides had long contended that the plaintiffs lacked standing to sue, and they had resisted a court order requiring that White House preserve the backup tapes that were used to recover the e-mails; the courts rejected both positions.
Last week, a different judge overrode White House objections and ordered the administration to search for information that CREW is seeking on White House visitors during the Bush tenure. Another judge turned aside White House objections to handing copies to aides of President-elect Barack Obama of documents related to the controversial firings of U.S. prosecutors in 2006, which Congress has demanded to see. Still to be decided, possibly in coming days, is a lawsuit by CREW demanding the preservation of vice presidential records that aides to Dick Cheney have said he alone can decide to withhold or discard.
The dispute over recovery of the missing e-mails was provoked by the disclosure four years ago that the White House, in switching to a new internal e-mail system shortly after Bush's election, had abandoned an automatic archiving system meant to preserve all messages containing official business. Under the new system, any of the 3,000 or so regular White House employees could access e-mail storage files, enabling them to delete messages.
An internal White House report noted in 2005 that e-mails from specific periods appeared to be missing, including key moments related to the invasion of Iraq and to a federal probe of the leak of Valerie Plame Wilson's classified employment with the CIA. White House officials called that study flawed after congressional investigators released it.
Once the e-mails are transferred to the National Archives, federal law allows them to be requested under the Freedom of Information Act after a five-year interval.