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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.

"This information may also reveal the extent to which any of the defendants has already destroyed any back-up copies of the deleted email records or transferred them out of the OA's possession, custody or control. Separate and apart from the illegality of any such action, it is critical to ascertain what back-up copies may have been destroyed to determine what additional steps can and should be taken to replicate those copies before the end of President Bush's term in office. These other copies, however, whether in hard drives or other repositories, are only accessible for the duration of President Bush's term, after which they will be cleaned out for the incoming president. Accordingly, it is critical to pinpoint what back-up copies are presently available and what back-up copies have been destroyed to explore, in the short time that remains, alternative methods of restoring the millions of deleted email records. . . .

"Under this administration's watch, millions of email have gone missing and the White House has done nothing to reconstruct those historically important federal records or take steps to prevent further document destruction. When confronted with requests for information about the missing email problem, the White House has unilaterally removed itself from the public arena altogether by declaring that the OA is no longer an agency subject to government sunshine laws. In the short life of this lawsuit the White House defendants have refused to give adequate assurances of document preservation, refused to provide basic information and refused to meet with plaintiff's counsel to plan for discovery."

Here's more background from the National Security Archive and the original CREW report from April about the missing e-mails.

Oversight Watch

On August 30, House Oversight Committee Chairman Henry Waxman wrote a letter to White House Counsel Fred Fielding demanding some answers from the White House.

"On May 29,2007, Keith Roberts, the Deputy General Counsel of the White House Office of Administration, and Emmet Flood, Special Counsel to the President, briefed Committee staff on the White House e-mail system and the missing e-mails," Waxman wrote. "At the briefing, Mr. Roberts informed Committee staff that the White House had discovered in 2005 that an unknown number of e-mails may not have been preserved in the White House archive, as required by the Presidential Records Act. According to Mr. Roberts, the Office of the Chief Information Officer then conducted a review of the e-mail system to determine the scope of the potential loss. He said that this review apparently found some days with a very small number of preserved e-mails and some days with no e-mails preserved at all. He also stated that a report summarizing these findings had been presented to the White House Counsel's office.

"In addition, Mr. Roberts informed the Committee that an unidentified company working for the Information Assurance Directorate of the Office of the Chief Information Officer was responsible for daily audits of the e-mail system and the e-mail archiving process. Mr. Roberts was not able to explain why the daily audits conducted by this contractor failed to detect the problems in the archive system when they first began.

"At the conclusion of the briefing, Committee staff requested a copy of the analysis presented to White House Counsel and the identity of the contractor responsible for daily audits and archiving. Mr. Flood told Committee staff that he would take the two requests under consideration. Since then, Committee staff have repeatedly requested that the White House provide this information without success. Given that three months have passed since your office first received this request, I am writing to ask that you provide the information to the Committee by September 10, 2007."

But earlier this month Damon Poeter wrote for an online marketing trade publication, ChannelWeb Network: "When Congress asked about 5 million executive branch e-mails that went missing, a White House lawyer pointed the finger at an outside IT contractor.

"The only problem? No such IT contractor exists, according to sources close to the investigation of a possible violation of the Federal Records and Presidential Records acts."

As for Waxman's Sept. 10 deadline, Poeter wrote that it had "come and gone with no response from the Bush administration on Waxman's request."

Scandal Convergence

And how did the public find out about the e-mails deleted off the White House servers? From CIA leak special prosecutor Patrick Fitzgerald. In January 2006, after his indictment of vice presidential aide Scooter Libby for obstruction of justice and perjury, Fitzgerald sent a letter to Libby's lawyer that understatedly noted that "we advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."

Not the Same E-Mails

A lot of people seem confused about this, so it's worth pointing out that there are two entirely different sets of missing e-mails: These and the ones that top White House aides including Karl Rove intentionally sent and received using their Republican National Committee e-mail accounts even while knowing full well that circumventing the White House servers for official business was a violation of federal law.

When congressional investigators looking into the suspicious firings of nine U.S. attorneys last year started asking after those e-mails, it turned out those were missing, too, just for different reasons: They'd been deleted by the RNC. The White House is ostensibly trying to recover those as well.

For background on that set, see my April 13 column, E-Mail Saga Gets Fishier, and my June 19 column, Casual Lawbreaking at the White House.

On Iran, Conflicting Narratives

Olivier Knox writes for AFP: "Bush and German Chancellor Angela Merkel agreed Saturday to pursue a diplomatic end to the Iran nuclear standoff as they worked on a common strategy towards a defiant Tehran.

"But the two did not appear to narrow their differences on individual country sanctions, as Merkel stuck to her position that Germany would wait until ongoing European and UN diplomatic efforts have run their course.

"'The top of my agenda is Iran,' Bush said as they met on his 'Prairie Chapel' Texas ranch. 'We will continue to work together to solve this problem diplomatically, which means they will continue to be isolated.' . . .

"National security adviser Stephen Hadley told reporters the possibility of using a 'military option' against Iran 'didn't explicitly' come up."

Warren P. Strobel writes for McClatchy Newspapers that "the White House and its partisans may be inflating the dangers of a nuclear-armed Iran, say experts on the Persian Gulf and nuclear deterrence. While there are dangers, they acknowledge, Iran appears to want a nuclear weapon for the same reason other countries do: to protect itself.

"Bush, by contrast, has suggested that a nuclear-armed Iran could bring about World War III. The president and his top aides, along with hawkish commentators, have suggested that Iran might launch a first strike on Israel or the United States, or hand nuclear weapon to terrorist groups Tehran supports."

Demetri Sevastopulo, Daniel Dombey and Andrew Ward write in the Financial Times: "The Pentagon is not preparing a pre-emptive attack on Iran in spite of an increase in bellicose rhetoric from Washington, according to senior officers.

"Admiral William Fallon, head of Central Command, which oversees military operations in the Middle East, told the Financial Times that while dealing with Iran was a 'challenge', a strike was not 'in the offing'.

"'None of this is helped by the continuing stories that just keep going around and around and around that any day now there will be another war which is just not where we want to go,' he said.

"'Getting Iranian behaviour to change and finding ways to get them to come to their senses and do that is the real objective. Attacking them as a means to get to that spot strikes me as being not the first choice in my book.'

"Adm Fallon did not rule out the possibility of a strike at some point. But his comments served as a shot across the bows of hawks who are arguing for imminent action. They also echoed the views of the senior brass that military action is currently unnecessary, and should only be considered as an absolute last resort."

Tim Shipman and Philip Sherwell write in the Telegraph: "The Bush administration is losing patience with Gordon Brown over Iran, with senior American diplomats frustrated by his reluctance to declare bluntly that the Islamic state must never be allowed nuclear weapons.

"Allies of Condoleezza Rice, the US Secretary of State, have told The Sunday Telegraph that the Prime Minister should emulate France's President Nicolas Sarkozy and warn that Iran may face military action, in order to help avert a new war in the Middle East."

Pakistan Watch

Robin Wright writes in The Washington Post: "The Bush administration is betting that President Pervez Musharraf can survive the crisis in Pakistan if he moves decisively to lift emergency rule and hold elections over the next two months, despite new U.S. intelligence concerns about the dangers of long-term instability or, worse, a political vacuum, U.S. officials say. . . .

"Over the past week, the administration's position has begun to evolve from a commitment to stand by Musharraf to an emphasis on the will of the Pakistani people, and of unnamed 'others.'"

Anne Gearan writes for the Associated Press: "Pakistan's military leader is betting that having flouted strong U.S. warnings not to declare a state of emergency he can now hold off his patron's pleas for a quick return to constitutional rule and go on banking billions in American anti-terrorism aid.

"President Gen. Pervez Musharraf is probably right for now. But the strongman's triumph may be short-lived. Some of Musharraf's backers in Washington quietly agree with his political opponents at home that he cannot hold power for long."

Helene Cooper writes in the New York Times: "The Bush administration is dispatching a high-level envoy to Pakistan to tell the Pakistani president, Gen. Pervez Musharraf, face to face that the United States will not be satisfied with his plan to hold elections unless he first lifts emergency law, administration officials said Monday."

Cooper sees "increased frustration within the administration over General Musharraf's power grab, as well as mounting uneasiness about how much longer Pakistan can continue in the present chaos before descending into further instability."

Bush spoke about Pakistan at his press availability with Merkel on Saturday. Steven Lee Myers of the New York Times asked him: "Are you at all concerned that General Musharraf may not live up to the promises that you said he's made to you?"

Bush replied: "I take a person for his word until otherwise. I think that's what you have to do. When somebody says this is what they're going to do, then you give them a chance to do it. I can tell you this, that President Musharraf, right after the attacks on September the 11th, made a decision, and the decision was to stand with the United States against the extremists inside Pakistan. In other words, he was given an option: Are you with us, or are you not with us? And he made a clear decision to be with us, and he's acted on that advice."

The Cost of War

Josh White writes in The Washington Post: "The economic costs to the United States of the wars in Iraq and Afghanistan so far total approximately $1.5 trillion, according to a new study by congressional Democrats that estimates the conflicts' 'hidden costs'-- including higher oil prices, the expense of treating wounded veterans and interest payments on the money borrowed to pay for the wars.

"That amount is nearly double the $804 billion the White House has spent or requested to wage these wars through 2008, according to the Democratic staff of Congress's Joint Economic Committee. Its report, titled 'The Hidden Costs of the Iraq War,' estimates that the wars in Iraq and Afghanistan have thus far cost the average U.S. family of four more than $20,000."

Bush, the Bereaved and the Bubble

Sheryl Gay Stolberg writes in the New York Times about the bereaved families who get granted a private audience with the commander in chief.

"As Mr. Bush forges ahead with the war in Iraq, these 'families of the fallen,' as the White House calls them, are one constituency he can still count on, a powerful reminder to an unpopular president that even in the face of heartbreaking loss, some still believe he is doing the right thing. . . .

"Mr. Bush often says he hears their voices -- 'don't let my son die in vain,' he quotes them as saying -- when making decisions about the war. The White House says families are not asked their political views. Yet war critics wonder just whose voices the president is hearing."

For instance, one war protester who lost his son in Iraq tells Stolberg: "I can't help but be left with the suspicion that possibly his advance team screened those families for people who would be sympathetic."

Stolberg writes that "war critics say the sessions amount to little more than echo chambers to reinforce Mr. Bush's views. Charley Richardson, a founder of Military Families Speak Out, which opposes the war, said about 100 families who had lost loved ones were members of his group, but just one . . . had met Mr. Bush.

"'He doesn't hear the other voices,' Mr. Richardson said. 'If all the voices are supporting the war, it's a powerful emotional addition to the chorus.' . . .

"Mr. Bush also meets families in connection with Iraq-related ceremonies and speeches, where war supporters make up the audience."

As for those meetings with the bereaved: "God is a frequent topic. Robert Lehmiller . . . says the president brought religion into the conversation, telling him, 'If you truly believe the Scriptures, you will see your son again.'"

Waterboarding Watch

The New York Times editorial board writes: "Senator Charles Schumer, the New York Democrat who turned the tide for [Michael Mukasey's nomination as attorney general], said that if the Senate did not approve Mr. Mukasey, the president would get by with an interim appointment who would be under the sway of 'the extreme ideology of Vice President Dick Cheney.' . . .

"That is precisely the sort of cozy rationalization that Mr. Schumer and his colleagues have used so many times to back down from a confrontation with Mr. Bush. The truth is, Mr. Mukasey is already in the grip of that 'extreme ideology.' If he were not, he could have answered the question about waterboarding. "

The Los Angeles Times editorial board writes that Bush's "coyness about 'which techniques we may use' inevitably undercuts his repeated assertion that 'we do not torture.'

"It's time that Bush was challenged not only on the mixed message he is sending about the propriety of torture but on its underlying rationale: the so-called Ticking Time Bomb Scenario."

The USA Today editorial board writes: "Congress, which is considering several measures to prohibit waterboarding, should move promptly to eliminate any lingering doubt about where America stands."

Book Watch

From Ronald Brownstein's "timely and compelling new book," as quoted in New York Times book critic Michiko Kakutani's review: "In his congressional strategy [Bush] consistently demonstrated that he would rather pass legislation as close as possible to his preferences on a virtually party-line basis than make concessions to reduce political tensions or broaden his support among Democrats."

Bush "sought not to construct a consensus for a common direction on Iraq, but rather to obtain acquiescence for the undeviating direction he had charted in his own mind. . . .

"The overriding lesson for both parties from the Bush attempt to profit from polarization is that there remains no way to achieve lasting political power in a nation as diverse as America without assembling a broad coalition that locks arms to produce meaningful progress against the country's problems."

Rove and Civility

Liberal bloggers weren't too impressed with former White House political guru Karl Rove's speech last week lamenting the loss of civility in politics on the Web. Thinkprogress reported that Rove "claimed that liberals use more 'bad words,' comparing sites like DailyKos and Democratic Underground to Townhall and FreeRepublic."

Duncan Black, who blogs as Atrios, replied: "I love civility lessons" from a man whose obscenity-filled tirade once shocked reporter Ron Suskind. Suskind, who while waiting for an interview unwittingly eavesdropped on Rove talking to a aide, wrote in 2003: "As a reporter, you get around -- curse words, anger, passionate intensity are not notable events -- but the ferocity, the bellicosity, the violent imputations were, well, shocking."

The 'Coup at Home'

Frank Rich writes in his New York Times opinion column that Bush has brought about an effective assault on American governmental institutions. "While the public has not erupted in riots, the executive branch has subverted the rule of law in often secretive increments. The results amount to a quiet coup, ultimately more insidious than a blatant putsch like General Musharraf's.

"More Machiavellian still, Mr. Bush has constantly told the world he's championing democracy even as he strangles it. Mr. Bush repeated the word 'freedom' 27 times in roughly 20 minutes at his 2005 inauguration, and even presided over a 'Celebration of Freedom' concert on the Ellipse hosted by Ryan Seacrest. It was an Orwellian exercise in branding, nothing more. The sole point was to give cover to our habitual practice of cozying up to despots (especially those who control the oil spigots) and to our own government's embrace of warrantless wiretapping and torture, among other policies that invert our values. . . .

"To believe that this corruption will simply evaporate when the Bush presidency is done is to underestimate the permanent erosion inflicted over the past six years. What was once shocking and unacceptable in America has now been internalized as the new normal. . . .

"We are a people in clinical depression. Americans know that the ideals that once set our nation apart from the world have been vandalized, and no matter which party they belong to, they do not see a restoration anytime soon."

Quote of the Week

ABC News White House correspondent Martha Raddatz, talking to Howard Kurtz of the Washington Post about her frequent trips to international hotspots: "I'd probably go crazy if I had to stay every second at the White House and not go out and be a reporter. . . . I don't want to be a stenographer."

Cartoon Watch

Garry Trudeau on the White House's Iranian plan; Pat Oliphant, John Sherffius and Mike Luckovich on Bush and Musharraf; Joel Pett on the Bush legacy.

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