Where Are the E-mails?

By Dan Froomkin
Special to washingtonpost.com
Tuesday, November 13, 2007; 12:52 PM

Why is it taking White House officials so long to restore millions of deleted e-mails from the backup tapes they claim to have?

The e-mails in question date from March 2003 to October 2005 -- a crucial period that includes the Iraq invasion, a presidential election and Hurricane Katrina.

White House officials have known for more than two years that the messages were deleted -- a clear violation of presidential records-preservation statutes. But the president's aides won't explain what happened, what sort of backups they have and what they're doing about it.

That obstinacy led a federal judge to step in yesterday and order the White House to preserve every bit of related data in its possession -- just to make sure nothing untoward happens while a civil suit by two open-government groups goes forward.

Peter Baker writes in The Washington Post: "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. . . .

"Citizens for Responsibility and Ethics in Washington [CREW], 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."

Pete Yost writes for the Associated Press: "The Federal Records Act details strict standards prohibiting the destruction of government documents including electronic messages, unless first approved by the archivist of the United States. . . .

"The judge's order 'should stop any future destruction of e-mails, but the White House stopped archiving its e-mail in 2003 and we don't know if some backup tapes for those e-mails were already taped over before we went to court. It's a mystery,' said Meredith Fuchs, a lawyer for the National Security Archive."

Here is the order:"defendants shall preserve media, no matter how described, presently in their possession or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction. Defendants shall preserve the media under conditions that will permit their eventual use, if necessary, and shall not transfer said media out of their custody or control without leave of this court."

In their motion, National Security Archive lawyers explained that "fundamentally, the defendants refuse to provide any details about the still existing body of back-up copies, including what time period they cover, the extent to which they contain any of the missing emails, and whether there are multiple copies beyond what the defendants have variously referred to as 'disaster recovery tapes -- tapes formatted to focus on restoring systems and point in time data in the event of an emergency -- that were in the [White House] Office of Administration's possession as of September 5, 2007' . . .

"The missing records at issue span critical events in U.S. policy, including the invasion of Iraq in March 2003, the Abu Ghraib scandal, release of a congressional report detailing the flawed intelligence that was relied upon concerning weapons of mass destruction in Iraq, and the handling of Hurricane Katrina. If the deletions go beyond 2005, they may also involve records concerning the renewal of the highly controversial U.S.A. Patriot Act, a major administration initiative concerning immigration policy, and the White House role in the firing of a number of U.S. Attorneys. These are the kinds of records that the Federal Records Act seeks to preserve because they document our history and facilitate an informed American public."

In their motion, lawyers for CREW wrote: "To the extent this particular set of tapes does not encompass all of the missing emails, it is essential that other copies are preserved, whether or not they were created specifically for disaster recovery efforts and whether or not they are currently in the OA's [Office of Administration] possession, custody or control.

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