Contempt for the Law

By Dan Froomkin
Special to
Thursday, January 17, 2008; 1:16 PM

There is much cause for outrage over the White House's brazen disregard for federal public records law, which may well have resulted in the destruction of millions of official e-mails. But today's focus on the recycling of backup tapes may actually be a bit of a red herring.

The law is clear that e-mails sent and received by anyone in the White House -- just like all official White House documents -- should be instantaneously and automatically archived.

So someone in the White House should have been making sure the law was being followed, and that all e-mails were indeed being properly stored for posterity.

That same someone also should have been making sure White House staffers weren't circumventing archive requirements by using outside e-mail addresses. But the White House legal counsel's office remained silent as top aides, including Karl Rove, fired off possibly hundreds of thousands of official-business e-mails from Republican National Committee accounts, where most data is routinely deleted after 30 days.

The matter in the news today relates not to those e-mails, but to as many as several million others -- these actually on the accounts -- that seem to have vanished.

The best information we have about those e-mails comes from an Aug. 30, 2007 letter from House Oversight Committee Chairman Henry Waxman to White House Counsel Fred Fielding, outlining what congressional investigators had discovered so far.

"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."

Waxman requested more information. He's still waiting.

As soon as White House officials determined that e-mails might be missing from the archives, it was their responsibility to launch a search-and-rescue mission. And they should have starting going through the emergency backup tapes -- which provide snapshots of the entire network at a given point in time and allow you to fish specific things out if need be.

But the White House took no immediate action. It only recently launched a full-scale investigation -- an investigation that is conveniently still underway.

And, as the White House explained in a court filing late Tuesday night, those backup tapes were regularly overwritten until October 2003.

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